BONILLAS v D.R. HILL

U.S. 9th Circuit Court of Appeals

BONILLAS v D.R. HILL

9656774

LOUIS LUJAN BONILLAS,

Petitioner-Appellant,

No. 96-56774

v.

D.C. No.

D. R. HILL, Warden; ATTORNEY

CV-96-06021-WMB

GENERAL OF THE STATE OF

OPINION

CALIFORNIA,

Respondents-Appellees.


Appeal from the United States District Court
for the Central District of California
William Matthew Byrne, Jr., Chief Judge, Presiding

Argued and Submitted
December 2, 1997--Pasadena, California

Filed January 29, 1998

Before: Cynthia Holcomb Hall, Melvin Brunetti, and
Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Brunetti

_________________________________________________________________

COUNSEL

David Negus, Deputy Public Defender, Rancho Cucamonga,
California, for the appellant.

Frederick R. Millar, Jr., Deputy Attorney General, San Diego,
California, for the appellees.

_________________________________________________________________

OPINION

BRUNETTI, Circuit Judge.

On January 27, 1983, a California jury returned the follow-
ing verdict: "We, the jury in the above titled action, find the
defendant, Louis Lujan Bonillas, guilty of the crime of mur-
der, as charged in the Information, as to Count I."1 The court
admonished the jurors not to discuss the case and to refrain
from reading about the case. The court then excused the jurors
and directed them to call in on February 2, 1983, to receive
instructions on when to reconvene for the penalty phase.

On January 28, 1983, defense counsel informed the court
that the guilty verdict failed to expressly specify the degree of
murder. On January 31, 1983, the court ordered the jurors to
reassemble. Defense moved that, pursuant to California Penal
Code S 1157,2 the degree of murder must be fixed at second
degree. The court denied the motion and instructed the jury to
retire and consider the appropriate degree of murder. The
court provided the jury with two verdict forms, one finding
murder in the first degree and the other finding murder in the
second degree. The jury then returned a verdict of first degree
murder. Bonillas was subsequently sentenced to death.
In 1989, the California Supreme Court reversed the judg-
ment of death, but affirmed the judgment as to guilt. Bonillas
filed a 28 U.S.C. S 2254 petition for writ of habeas corpus in
district court. The district court denied the petition and Bonil-
las now appeals.3

We review de novo a district court's denial of a S 2254
habeas petition. Dyer v. Calderon, 113 F.3d 927, 933 (9th Cir.
1997).

I. Double Jeopardy

Bonillas first argues that the trial court violated the Double
Jeopardy Clause by resubmitting the verdict to the jury to fix
the degree of murder. Specifically, he contends that California
Penal Code S 1157 dictates that he was convicted of second
degree murder and effectively acquitted of first degree murder
because the jury initially returned a verdict of murder without
specifying a degree. Thus, he argues, the trial court violated
the Double Jeopardy Clause and Green v. United States, 355
U.S. 184 (1957), by allowing the jury to reconsider first
degree murder.

[1] This argument fails because Bonillas was not acquitted
of first degree murder under California law. The Supreme
Court of California ruled that S 1157 did not apply to fix the
degree of murder in Bonillas' case. People v. Bonillas, 48 Cal.
3d 757, 779 (1989). In Bonillas, the court held that the trial
court was authorized to reconvene the jury to complete its
verdict, stating:

Where, as here, further proceedings are to take place,
the jury has not been discharged, the jurors have
been specifically instructed that they are still jurors
in the case, they have been admonished not to dis-
cuss the case with anyone nor to permit anyone to
discuss the case with them, and they have been
directed not to read anything about the case, the
jurors have not thrown off their character as jurors
nor entered the outside world freed of the admoni-
tions and obligations shielding their thought pro-
cesses from outside influences. Clearly, the jury here
remained within the court's control, their verdict was
incomplete, and the court was authorized to recon-
vene the jury to complete its verdict.

Id. at 773.

[2] Bonillas argues that under California Penal Code S 1164,4
as it read at the time of his trial in 1983, a verdict is complete
when received by the clerk, acknowledged by the jury, and
recorded, if no disagreement is expressed by any juror. The
California Supreme Court, however, reasonably construed its
prior precedent to require that the jury also be discharged
before the trial court loses its jurisdiction to reconvene the
jurors. Id. at 770-71.

[3] Because the trial court was authorized to reconvene the
jury to complete the verdict, the jury lawfully made an
express finding of first degree murder. Id. at 769. Thus, the
jury did not fail to specify a degree of murder and, accord-
ingly, S 1157 did not effectuate a conviction of second degree
murder.
[4] Furthermore, under the principles of Schiro v. Farley,
510 U.S. 222
(1994), a review of the entire record does not
show that the jury's silence as to the degree of murder was
tantamount to an acquittal of first degree murder. First, the
trial court instructed the jury that if they were to find Bonillas
guilty of first degree murder, they were then to decide
whether the murder was committed under a special circum-
stance. The jury's verdict did expressly find the special cir-
cumstance, implying that they actually found Bonillas guilty
of first degree murder. Second, the verdict sheets originally
provided to the jury did not specify degrees of murder. Thus,
the jury was not reminded by the verdict sheets to specify a
degree. Finally, counsel for the government and for the defen-
dant both informed the jury that they did not need to find a
degree of murder because felony murder was the only murder
theory that was being submitted. Under Schiro, the record
does not establish that the jury "actually and necessarily"
fixed the degree of murder in Bonillas' favor. Thus, he was
not acquitted of first degree murder and, accordingly, was not
placed in double jeopardy.

II. Due Process

Bonillas next argues that the California Supreme Court's
interpretation of California Penal Code S 1157 in Bonillas
violated his due process rights. He contends that the court
interpreted S 1157 in an "unforeseeable and unsupported"
fashion in violation of a principle articulated in Bouie v. City
of Columbia,
378 U.S. 347, 354
(1964) (stating that "an
unforeseeable and unsupported state court decision on a ques-
tion of state procedure does not constitute an adequate ground
to preclude this Court's review of a federal question").

[5] "[I]t is not the province of a federal habeas court to re-
examine state-court determinations on state-law questions. In
conducting habeas review, a federal court is limited to decid-
ing whether a conviction violated the Constitution, laws, or
treaties of the United States." Estelle v. McGuire, 502 U.S.

62, 67-68 (1991). Thus, we cannot reconsider the substance
of the California Supreme Court's interpretation ofS 1157.
However, we can re-examine the propriety of the interpreta-
tion in reference to whether the conviction violated Bonillas'
due process rights.

[6] Specifically, Bonillas argues that the California
Supreme Court's interpretation of S 1157 in Bonillas strayed
from precedent created in People v. McDonald, 37 Cal. 3d
351 (1984), and cases cited therein. Upon review of the
Bonillas opinion, we find that the court's interpretation of
S 1157 was not "unforeseeable and unsupported." The
Bonillas court carefully considered and distinguished
McDonald and the other cases. Thus, the California Supreme
Court did not act in such an erratic fashion as to deprive
Bonillas of his constitutional rights.

AFFIRMED._______________________________________________________________

FOOTNOTES

1 This verdict included the special circumstance of murder committed
during the commission of, attempted commission of, or the immediate
flight after committing or attempting to commit burglary.
2 S 1157 provides: "Whenever a defendant is convicted of a crime or
attempt to commit a crime which is distinguished into degrees, the jury,
or the court if a jury trial is waived, must find the degree of the crime or
attempted crime of which he is guilty. Upon the failure of the jury or the
court to so determine, the degree of the crime or attempted crime of which
the defendant is guilty, shall be deemed the lesser degree."3 Bonillas filed his petition on April 18, 1996. The Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA") applies only to actions
filed on or after April 26, 1996. Lindh v. Murphy, 117 S. Ct. 2059 (1997).
Thus, the AEDPA does not apply to Bonillas' claims.
4 In 1983, S 1164 stated:"When the verdict given is such as the court
may receive, the clerk, or if there is no clerk, the judge or justice, must
record it in full upon the minutes, and if requested by any party must read
it to the jury, and inquire of them whether it is their verdict. If any juror
disagrees, the fact must be entered upon the minutes and the jury sent out;
but if no disagreement is expressed, the verdict is complete, and the jury
must be discharged from the case."