Ray v. Kernan (646 F. Supp. 2d 1102, 2009)

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

SAUNDRA BROWN ARMSTRONG, District Judge.

INTRODUCTION

This matter is now before the Court for consideration of Petitioner’s pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 concerning his 2000 conviction in the Alameda County Superior Court. Respondent Warden Scott Kernan opposes the petition. Petitioner filed a traverse. For the reasons discussed below, the petition is DENIED as to all claims.

BACKGROUND

I. Case History

Petitioner was convicted of first degree murder in the Alameda County Superior Court in October of 2001. He was sentenced to state prison for twenty-five years to life. The state appellate court affirmed his conviction on April 27, 2004, 2004 WL 887413. (Resp’t Ex. 6.) The California Supreme Court denied review on July 14, 2004. Petitioner then filed a habeas petition in the Alameda County Superior Court, which was denied on March 11, 2005. Petitioner’s habeas petition was thereafter denied by the state appellate court on January 30, 2006, and by the California Supreme Court on March 22, 2006.

The instant petition was filed on July 27, 2006. On December 4, 2006, the Court issued an order to show cause and granted Petitioner’s motion to proceed in forma pauperis. Respondent filed two separate motions for extensions of time, which the Court granted. Respondent filed an Answer on May 30, 2007. Petitioner filed a Traverse on June 19, 2007. The matter has been fully briefed and is now ready for review on the merits.

II. Statement of Facts

The appellate court described the facts underlying this case as follows:

The victim, Kimberly Ray (Kimberly), was strangled to death in the early morning of February 26, 2000.

[Petitioner] and Kimberly were married in 1993 or 1994. Their relationship was described as not very good. They had gone through separations and each had had relationships with other people. In the fall of 1999, Kimberly was living in an Alameda apartment with her three young children, and [Petitioner] was in custody. Kimberly contacted relatives in Sacramento and told them she wanted to move to Sacramento with the children. She planned that she and the children would stay with her cousin La-Donna Jackson (LaDonna) until she found a place. In late January 2000, Kimberly applied for rental housing in Sacramento and gave notice of her intent to vacate her apartment on March 2.

Sometime in February 2000, Kimberly told a neighbor she was happy that [Petitioner] was being released from prison and would be staying with her and the children. However, after [Petitioner] moved in, Kimberly was not happy, acted “quiet” and “nervous,” and was anxious to move to Sacramento. Kimberly told LaDonna that she would be moving to Sacramento just with the children. LaDonna told Kimberly that [Petitioner] was not welcome in her home because she feared for her own safety and the safety of Kimberly’s children. During a phone conversation with her cousin Robin Jackson (Robin) the week before her murder, Kimberly said [Petitioner] was always trying to intimidate her. Robin heard [Petitioner] respond, “I don’t have to try to intimidate you. If I want to kick your ass, I’ll just kick your ass.” Kimberly sounded “shaken” and said she had to hang up. A few days before the murder, while Kimberly was on the phone with LaDonna, [Petitioner] screamed at Kimberly. On the day before the murder LaDonna spoke with Kimberly and told her she feared for Kimberly’s safety and Kimberly should “Come now. Just leave everything.”

Kimberly’s mother, Moselle Hickman, talked to her daughter on the phone sometime in February 2000, after [Petitioner] had moved in, and heard [Petitioner] refer to Kimberly as “his bitch,” and then hang up the phone. Hickman said that after [Petitioner] moved in with Kimberly, Kimberly no longer seemed happy, “wasn’t herself,” and there was “always some sort of turmoil.” On February 25, Hickman talked to Kimberly numerous times. Kimberly said she had finished packing and would be moving to Sacramento when her lease was up on February 28 or 29. When Hickman last talked to Kimberly, at about 10:30 p.m. on the evening of the murder, Kimberly sounded “okay.” On cross-examination, Hickman conceded she was aware that Kimberly had ongoing correspondence with [Petitioner] between September 1999 and February 2000. Various letters between them were admitted to establish their positive relationship.

At approximately 12:44 a.m., on February 26, 2000, Alameda Fire Captain Michael D’Orazi arrived at Kimberly’s apartment after [Petitioner] called 911 to report that she was not breathing. [Petitioner] led emergency medical personnel to the bedroom where Kimberly was lying face up on the floor at the foot of the bed. [Petitioner] told D’Orazi that he had tried to resuscitate Kimberly. Kimberly was declared dead at the scene.

At about 1:00 a.m., Alameda Police Officers Gee and Abreu arrived at the apartment. [Petitioner] and Kimberly’s two children, Willie, Jr., age six, and Tequila, were asleep. Jasmine, Kimberly’s eight-year-old daughter and [Petitioner]^ stepdaughter, was awake. Jasmine appeared a little “shocked,” “confused” and “groggy,” but was otherwise fine. [Petitioner] was “very emotional.” Gee’s examination of Kimberly’s body revealed two very small puncture wounds under her chin. Three hair braid extensions, similar to those worn by Kimberly, were found at the end of the bed on the floor. A broken necklace and cross were found in the bed. There were no signs of forced entry into the apartment. Gee contacted the violent crimes unit to assist in the investigation because [Petitioner] was evasive in answering questions, and the condition of the bedroom and Kimberly’s body suggested there might have been a struggle.

At about 4:00 a.m., Detective Jones with the violent crimes unit arrived at the apartment where he met Gee and Abreu. [Petitioner] was asleep on the living room couch. Jones entered the bedroom where Kimberly was lying and noted the hair extensions lying on the floor, a lamp was overturned on the floor, the bed sheets were pulled back and a pillow was on the floor. Kimberly’s left hand was up and semi-closed in a claw-like position. She had two pinch-like marks under the left side of her chin which appeared fresh. She also had a scratch or scrape on her forehead. Jones opined that a struggle had taken place in the bedroom. Jones noted a fresh mark on [Petitioner’s chest at the neckline of his shirt. Photos taken of [Petitioner] later that afternoon revealed “a lot of’ fresh scratches on his upper arms and forearms. [Petitioner’s blood alcohol level measured .09 percent and he tested negative for narcotics.

The afternoon after the murder, Alameda Police Sergeants Lynch and Beetle conducted tape recorded interviews of Jasmine and Willie, Jr.

Dr. Sharon Van Meter, a pathologist, conducted Kimberly’s autopsy. The examination revealed petechiae (dot-like hemorrhages) over the upper and inner eyelids, forehead, upper face and lips, indicating a significant change in blood flow and oxygen to the head. There were abrasions on the left forehead, behind the right ear, and under the chin, and a contusion-abrasion on the right side of the neck. There were small, rounded scars on the upper and lower arms and upper chest. One of Kimberly’s denture which contained two teeth was found in her hair. Based on her examination, Dr. Van Meter opined that Kimberly’s death was caused by asphyxia due to strangulation. The strangulation could have been accomplished by hands or a soft object compressing the neck, or a forearm placed under the chin. Dr. Van Meter explained that strangulation can lead to unconsciousness within 30 seconds, and may result in death in one to two minutes, and will certainly cause death in five minutes. If the strangulating pressure is interrupted and the victim is able to take some breaths, it will take longer to cause death. Dr. Van Meter said that the fresh marks found below Kimberly’s chin could have resulted from her struggling during the assault. Kimberly’s blood alcohol level was .07 percent and was negative for narcotics. Forensic serological testing of material recovered from Kimberly’s fingernail clippings was consistent with [Petitioner]^ genetic profile as well as 82 percent of all African Americans.

On April 13, 2000, Jones interviewed Jasmine in Sacramento, where she and her siblings were living with LaDonna. Jasmine was reserved and did not “really want to talk about what she may have seen.” She did say that “PeeWee” had been to her house twice on the evening that Kimberly was murdered, both times while [Petitioner] was gone. PeeWee was never considered a suspect in the case. Willie, Jr., was frightened and did not want to talk. In April 2001, Jones and Beetle conducted videotaped interviews of Jasmine and Willie, Jr., in Sacramento. Jasmine was a “lot less reserved,” but still appeared to be “kind of holding back a little bit.” She did not mention PeeWee. Willie, Jr., was “skittish” and again did not want to talk. Testimony by Kimberly’s Children

Ten-year-old Jasmine testified at trial that when [Petitioner] moved in with her and her family, he and Kimberly argued because Kimberly wanted to move to Sacramento with the children and [Petitioner] did not want them to go. On the day of Kimberly’s murder neither Jasmine nor Willie, Jr., wrestled with [Petitioner], Kimberly’s best friends Yolanda and PeeWee came to visit, and left before sundown. Early in the evening [Petitioner] left the apartment for about five minutes. When he returned to the apartment Kimberly was talking on the phone to her mother about moving to Sacramento. Kimberly appeared happy. [Petitioner] and Kimberly began arguing because he did not want Kimberly to go to Sacramento. Later that evening, after Jasmine and her siblings went to bed, Jasmine was awakened by a “thump on the wall.” At about the same time she heard Kimberly say, “Stop.” Jasmine woke up Willie, Jr., and tried to get him to “come look,” but he went back to sleep. Jasmine peeked into Kimberly’s bedroom. Standing 10 feet away, Jasmine saw [Petitioner] strangling Kimberly. [Petitioner] and Kimberly were standing and [Petitioner] was pushing Kimberly against the wall. Jasmine then woke Willie, Jr., and brought him back to Kimberly’s room to “take a look,” at [Petitioner] strangling Kimberly. Jasmine demonstrated that she saw [Petitioner] with both hands around Kimberly’s neck with his thumbs across the throat. Kimberly looked frightened and was scratching [Petitioner], trying to get his hands off her. Jasmine said she was frightened so she went back to bed. After the police arrived, Jasmine asked [Petitioner] what happened, but he said nothing. When asked why she did not tell the police that she saw [Petitioner] strangling Kimberly, Jasmine said, “I don’t know. I was scared.” Jasmine also said she was worried that [Petitioner] “could go to jail forever,” and she wanted to go home.

On cross-examination, Jasmine admitted that she did not tell anyone that she had seen [Petitioner] choking Kimberly until April 2001 when she was interviewed by Jones. She also admitted that she was not truthful when she first talked to the police.

Jasmine also said she understood that [Petitioner] was not going to be moving to Sacramento because she heard Kimberly say “he can’t go.”

Eight-year-old Willie, Jr., testified at trial that a couple of days before Kimberly’s murder, while Kimberly was talking on the phone to a friend, Kimberly and [Petitioner] argued and [Petitioner] hung up the phone. On the night of Kimberly’s murder, he did not hear his parents arguing. He said Jasmine woke him up and told him that his parents were fighting. Willie, Jr., and Jasmine went into the living room to see what was wrong and Willie, Jr., saw [Petitioner] choking Kimberly. Willie, Jr., demonstrated that [Petitioner] had his right arm around Kimberly’s neck with his forearm in front of the neck. Willie, Jr., did not know what to do so he went back to his room and went to sleep. On cross-examination, defense counsel elicited that at the preliminary hearing Willie, Jr., testified that he heard his parents arguing, but did not see what was going on.

Testimony by Jailhouse Informant

Claudis Jefferson was in custody at the time of trial for a drug offense, and had three or four prior convictions for “dope” and “domestic violence” in the past 10 years. He met [Petitioner] while they were both in jail in March 2000. Jefferson said [Petitioner] approached him while he was giving legal advice to another cellmate. [Petitioner] said he had been charged with murder, had an upcoming hearing, and wanted “some type of defense,” some way “he can wiggle out of it.” [Petitioner] told Jefferson he had argued with his wife or girlfriend. “And the bottom line was, he strangled her ... choked her to death.” [Petitioner] also said “some children” had been “aware of him actually on the scene” and he was afraid he was not going to have input into what the children would say. [Petitioner] said he wanted family members to tell the children that [Petitioner] got the scratches on his hands from playing with the children, although [Petitioner] admitted the scratches occurred while he was choking the woman, who was trying to defend herself. [Petitioner] felt he could “beat this” if he could “get to the kids.” [Petitioner] told Jefferson that after the strangling he left the apartment and then returned and called 911, trying to make it appear that he found Kimberly dead upon his return. [Petitioner] gave Jefferson various explanations for killing Kimberly. He said they had argued over his using Kimberly’s money to buy drugs, and her attempts to “move and leave [him].” Jefferson said it appeared that Kimberly “was trying to get away from [Petitioner] and he wasn’t having none of that.” According to Jefferson, [Petitioner] referred to Kimberly as “the bitch” and said he “whoop[ed] her ass.” [Petitioner] also told Jefferson he had “whooped his [previous] girlfriend” and had done “some violence to her,” and they had pulled knives on each other. [Petitioner] told Jefferson he was concerned that his “skin” might be retrieved from under Kimberly’s nails.

Jefferson said that a few days after [Petitioner] first approached him, he contacted someone in law enforcement to report what [Petitioner] told him. In May 2000, while in state prison, Jefferson gave a tape-recorded statement to Jones. Jefferson admitted a history as a jailhouse informant, but claimed his motive for testifying against [Petitioner] was that [Petitioner] is “sick” and “needs to be off the street. He preys on women.” Jefferson denied receiving any promises or deals in exchange for his testimony, except for his safety in jail and when released from custody. Testimony Regarding Prior Domestic Violence Incidents

Brenda Boyd met [Petitioner] and began a romantic relationship with him in 1995. Boyd was aware at the time that [Petitioner] was married, but separated from Kimberly. On May 30, 1995, Boyd and [Petitioner] argued, and he refused her request to leave her apartment and knocked a plate of food out of her hand. [Petitioner] then went outside and broke Boyd’s window and her neighbor’s window. When Boyd went outside, a confrontation ensued and [Petitioner] hit her in the jaw with his fist. Boyd hit him back, then ran into the house to get a knife for protection. When she came out toward him, [Petitioner] was holding a knife and “nicked” her nose with it. Boyd then called the police. Boyd ended her relationship with [Petitioner] soon after that, but it resumed about two years later.

On December 10,1997, Boyd’s son called the police after [Petitioner] broke some windows in Boyd’s home and threw her Christmas tree out the window because he was upset that she had not cooked dinner. She told police that [Petitioner] hit her in the face with a set of dumbbells. However, at trial, she said that did not occur. Boyd continued her relationship with [Petitioner] until he went to prison.

The Defense

The defense theory was that [Petitioner] did not kill Kimberly, and that she did not intend to move to Sacramento without him.

[Petitioner]^ sister testified that [Petitioner] called her around midnight or 1:00 a.m. on the night of the murder. He was “hysterical” and crying. [Petitioner]^ brother-in-law also received a call from [Petitioner] at around that time, after which he went to Kimberly’s apartment. [Petitioner] appeared upset. Tapes of Jasmine’s and Willie, Jr.’s, videotaped statements to Sergeants Lynch and Beetle the day after the murder were played for the jury. Jasmine said that the night before, [Petitioner] left twice to go to the store after Kimberly told him to buy newspapers to pack glasses, and when he returned from the store he helped Kimberly pack. She also said [Petitioner] did not wrestle with the children that evening. Willie, Jr., also told police that [Petitioner] and Kimberly were packing, and that [Petitioner] and Kimberly argued while Kimberly was talking on the phone and [Petitioner] hung up the phone. Willie, Jr., said that [Petitioner] did wrestle with him that evening.

On cross-examination, Lynch testified that based on his direct experience, it can take days, weeks, months or years for a child who is repressing or suppressing something to “open up” so the child may be more thoroughly interviewed. Lynch opined that the length of the delay depends on “the event.”

A defense investigator testified that she attempted to interview Jefferson in jail, but Jefferson said he did not know [Petitioner] and did not want to talk to her.

(Resp’t Ex. 6, Ct. of Appeal Op. at 1-9 (brackets added and footnotes in original)).

DISCUSSION

I. Legal Standard

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court may grant a petition challenging a state conviction or sentence on the basis of a claim that was “adjudicated on the merits” in state court only if the state court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court has “adjudicated” a petitioner’s constitutional claim “on the merits” for purposes of § 2254(d) when it has decided the petitioner’s right to post-conviction relief on the basis of the substance of the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other rule precluding state court review on the merits. Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir.2004). It is error for a federal court to review de novo a claim that was adjudicated on the merits in state court. See Price v. Vincent, 538 U.S. 634, 638-43, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003).

Habeas relief is warranted only if the constitutional error at issue is structural error or had a “ ‘substantial and injurious effect or influence in determining [the] jury’s verdict.’ ” Penry v. Johnson, 532 U.S. 782, 795-96, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)); see, e.g., DePetris v. Kuykendall, 239 F.3d 1057, 1061 (9th Cir.2001) (exclusion of evidence was an unreasonable application of federal law and had a substantial and injurious effect on verdict).

A. Section 2254(d)(1)

Challenges to purely legal questions resolved by a state court are reviewed under § 2254(d)(1), under which a state prisoner may obtain habeas relief with respect to a claim adjudicated on the merits in state court only if the state court adjudication resulted in a decision that was “contrary to” or “involved an unreasonable application of’ “clearly established Federal law, as determined by the Supreme Court of the United States.” Williams v. Taylor, 529 U.S. 362, 402-04, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). While the “contrary to” and “unreasonable application” clauses have independent meaning, see id. at 404-05, 120 S.Ct. 1495, they often overlap, which may necessitate examining a petitioner’s allegations against both standards, see Van Tran v. Lindsey, 212 F.3d 1143, 1149-50 (9th Cir.2000), overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63, 70-73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

1. Clearly Established Federal Law

“Clearly established federal law, as determined by the Supreme Court of the United States” refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412, 120 S.Ct. 1495. “Section 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court’s jurisprudence.” Id. “A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). If there is no Supreme Court precedent that controls on the legal issue raised by a petitioner in state court, the state court’s decision cannot be contrary to, or an unreasonable application of, clearly-established federal law. See, e.g., Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir.2004).

The fact Supreme Court law sets forth a fact-intensive inquiry to determine whether constitutional rights were violated “obviates neither the clarity of the rule nor the extent to which the rule must be seen as ‘established’ ” by the Supreme Court. Williams, 529 U.S. at 391, 120 S.Ct. 1495. There are, however, areas in which the Supreme Court has not established a clear or consistent path for courts to follow in determining whether a particular event violates a constitutional right; in such an area, it may be that only the general principle can be regarded as “clearly established.” Andrade, 538 U.S. at 64-65, 123 S.Ct. 1166. When only the general principle is clearly established, it is the only law amenable to the “contrary to” or “unreasonable application of’ framework. See id. at 73,123 S.Ct. 1166.

Circuit decisions may still be relevant as persuasive authority to determine whether a particular state court holding is an “unreasonable application” of Supreme Court precedent or to assess what law is “clearly established.” Clark v. Murphy, 331 F.3d 1062, 1070-71 (9th Cir.), cert, denied, 540 U.S. 968, 124 S.Ct. 446, 157 L.Ed.2d 313 (2003); Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.1999).

2. “Contrary to”

“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413,120 S.Ct. 1495. A “run-of-the-mill state-court decision” that correctly identifies the controlling Supreme Court framework and applies it to the facts of a prisoner’s case “would not fit comfortably within § 2254(d)(l)’s ‘contrary to’ clause.” Williams, 529 U.S. at 406, 120 S.Ct. 1495. Such a case should be analyzed under the “unreasonable application” prong of § 2254(d). See Weighall v. Middle, 215 F.3d 1058,1062 (9th Cir.2000).

3. “Unreasonable Application”

“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreason-

ably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 412-13, 120 S.Ct. 1495. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411, 120 S.Ct. 1495; accord Middleton v. McNeil, 541 U.S. 433, 436, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (per curiam) (challenge to state court’s application of governing federal law must be not only erroneous, but objectively unreasonable); Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (“unreasonable” application of law is not equivalent to “incorrect” application of law).

Evaluating whether a rule application was unreasonable requires considering the relevant rule’s specificity; if a legal rule is specific, the range of reasonable judgment may be narrow; if it is more general, the state courts have more leeway. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). Whether the state court’s decision was unreasonable must be assessed in light of the record that court had before it. Holland v. Jackson, 542 U.S. 649, 651, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam).

The objectively unreasonable standard is not a clear error standard. Andrade, 538 U.S. at 75-76, 123 S.Ct. 1166 (rejecting Van Tran’s use of “clear error” standard); Clark, 331 F.3d at 1067-69 (acknowledging the overruling of Van Tran on this point). After Andrade,

[T]he writ may not issue simply because, in our determination, a state court’s application of federal law was erroneous, clearly or otherwise. While the “objectively unreasonable” standard is not self-explanatory, at a minimum it denotes a greater degree of deference to the state courts than [the Ninth Circuit] ha[s] previously afforded them.

Id. In examining whether the state court decision was unreasonable, the inquiry may require analysis of the state court’s method as well as its result. Nunes v. Mueller, 350 F.3d 1045, 1054 (9th Cir.2003).

B. Sections 2254(d) (2), 2254(e) (1)

A federal habeas court may grant a writ if it concludes a state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). An unreasonable determination of the facts occurs where a state court fails to consider and weigh highly probative, relevant evidence, central to a petitioner’s claim, that was properly presented and made part of the state court record. Taylor v. Maddox, 366 F.3d 992, 1005 (9th Cir.2004). A district court must presume correct any determination of a factual issue made by a state court unless a petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Section 2254(d)(2) applies to an intrinsic review of a state court’s fact-finding process, or situations in which the petitioner challenges a state court’s fact-findings based entirely on the state court record, whereas § 2254(e)(1) applies to challenges based on extrinsic evidence, or evidence presented for the first time in federal court. See Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th Cir.2004). In Taylor, the Ninth Circuit established a two-part analysis under §§ 2254(d)(2) and 2254(e)(1). Id. First, federal courts must undertake an “intrinsic review” of a state court’s fact-finding process under the “unreasonable determination” clause of § 2254(d)(2). Id. at 1000. The intrinsic review requires federal courts to examine the state court’s fact-finding process, not its findings. Id. Once a state court’s fact-finding process survives this intrinsic review, the second part of the analysis begins by dressing the state court finding in a presumption of correctness under § 2254(e)(1). Id. According to the AED-PA, this presumption means that the state court’s fact-finding may be overturned based on new evidence presented by a petitioner for the first time in federal court only if such new evidence amounts to clear and convincing proof a state court finding is in error. See 28 U.S.C. § 2254(e)(1). “Significantly, the presumption of correctness and the clear-and-convincing standard of proof only come into play once the state court’s fact-findings survive any intrinsic challenge; they do not apply to a challenge that is governed by the deference implicit in the ‘unreasonable determination’ standard of section 2254(d) (2).” Taylor, 366 F.3d at 1000. If constitutional error is found, habeas relief is warranted only if the error had a “ ‘substantial and injurious effect or influence in determining [the] jury’s verdict.” Penry, 532 U.S. at 795, 121 S.Ct. 1910 (quoting Brecht, 507 U.S. at 638,113 S.Ct. 1710).

II. Exhaustion

Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through state collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Granberry v. Giver, 481 U.S. 129, 133-34, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). Where, as here, the highest state court to reach the merits issued a summary opinion which does not explain the rationale of its decision, federal court review under § 2254(d) is of the last state court opinion to reach the merits. Bains v. Cambra, 204 F.3d 964, 970-71, 973-78 (9th Cir.2000). In this case, the last state court opinion to address the merits of Petitioner’s claim is the reasoned opinion of the state appellate court. It is undisputed that Petitioner exhausted his direct and collateral state court remedies as to the claims raised in his petition.

III. Legal Claims

The petition raises sixteen claims: (1)-(3) the evidence was insufficient to support a conviction of premeditated and deliberate murder; (4) the trial court erred in admitting evidence of prior acts of domestic violence; (5) the trial court erred in admitting inadmissible hearsay; (6) the trial court erred by failing to give a jury instruction requested by the defense; (7) the trial court erred by “prejudicially instructing the jury [that] the conscious disregard form of voluntary manslaughter is a general intent crime”; (8) the trial court erred in instructing the jury with CALJIC No. 2.50.02; (9) the trial court erred in admitting Officer Lynch’s testimony regarding reporting delays by child witnesses; (10)-(15) the trial court erred in admitting inconsistent and contradictory testimony from Claudis Jefferson, Brenda Boyd, Ladonna Jackson, Robin Jackson, Willie Ray, Jr., and Jasmine Price; and (16) cumulative error. The Court deals with each claim below.

IY. Claims Denied in Reasoned State Court Decision

A. Insufficiency of Evidence

The Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim, which, if proven, entitles him to federal habeas relief. See Jackson v. Virginia, 443 U.S. 307, 321, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir.1992), cert. denied, 510 U.S. 843, 114 S.Ct. 131, 126 L.Ed.2d 94 (1993). The federal court “determines only whether, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” See id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ be granted. See Jackson, 443 U.S. at 324, 99 S.Ct. 2781; Payne, 982 F.2d at 338; Miller v. Stagner, 757 F.2d 988, 992-93 (9th Cir.), amended, 768 F.2d 1090 (9th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1269, 89 L.Ed.2d 577, and cert. denied, 475 U.S. 1049, 106 S.Ct. 1271, 89 L.Ed.2d 579 (1986); Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir.), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984).

If confronted by a record that supports conflicting inferences, a federal habeas court must presume-even if it does not affirmatively appear on the record-that “the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326, 99 S.Ct. 2781. A jury’s credibility determinations are therefore entitled to near-total deference. Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir.2004). Except in the most exceptional of circumstances, Jackson does not permit a federal habeas court to revisit credibility determinations. See id. at 952 (credibility contest between victim alleging sexual molestation and petitioner vehemently denying allegations of wrongdoing not a basis for revisiting jury’s obvious credibility determination); see also People of the Territory of Guam v. McGravey, 14 F.3d 1344, 1346-47 (9th Cir. 1994) (upholding conviction for sexual molestation based entirely on victim’s uncorroborated testimony).

The prosecution need not affirmatively rule out every hypothesis except that of guilt. Wright v. West, 505 U.S. 277, 296-97, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (quoting Jackson, 443 U.S. at 326, 99 S.Ct. 2781). The existence of some small doubt based on an unsupported yet unrebutted hypothesis of innocence therefore is not sufficient to invalidate an otherwise legitimate conviction. See Taylor v. Stainer, 31 F.3d 907, 910 (9th Cir.1994) (three hypotheses regarding petitioner’s fingerprints which government failed to rebut unsupported by evidence and therefore insufficient to invalidate conviction).

Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). Mere suspicion and speculation, however, cannot support logical inferences. Id.

The state appellate court addressed Petitioner’s insufficiency of evidence claim as follows:

We first conclude that the evidence regarding the manner in which Kimberly was murdered was sufficient to support the jury’s finding of premeditation and deliberation. The pathologist testified that death from strangulation can take between one and five minutes, and a longer time is necessary if the strangulating pressure is interrupted and the victim can take some breaths. The police opined that a struggle took place in Kimberly’s bedroom. Numerous fresh scratches covered [Petitioner’s arms, and [Petitioner] told Jefferson that the scratches occurred while he was strangling Kimberly and she was trying to defend herself. That Kimberly’s hand was upraised and in a claw-like position further suggests she was trying to defend herself during the attack. A scratch on Kimberly’s chin may also have indicated a struggle. In addition, the testimony of Jasmine and Willie, Jr., further supports the inference that the strangulation was prolonged, not immediate, occurring over minutes rather than seconds. (See People v. Davis (1995) 10 Cal.4th 463, 510 [41 Cal. Rptr.2d 826, 896 P.2d 119] [defendant’s strangling of victim for up to five minutes, among other things, demonstrated deliberate plan to kill her].) Jasmine testified that she was awakened by a “thump” on the wall and then heard Kimberly say “stop.” Jasmine peeked into Kimberly’s bedroom, saw [Petitioner] strangling her against the wall, then went back to her bedroom to wake up Willie, Jr. After doing so, she and Willie, Jr., returned to Kimberly’s bedroom and [Petitioner] was still in the process of strangling Kimberly. Taken together, the jury could properly determine that after [Petitioner] began choking Kimberly, she verbally and then physically attempted to get him to stop, and that [Petitioner] continued to strangle her to death despite her protests. Thus, even if [Petitioner’s conduct in pushing Kimberly up against the wall and choking her was an unreflective explosion of violence, his decision to continue the attack and choke her to death, despite her verbal and nonverbal protests, supports the conclusion that the strangulation was premeditated.

There was also evidence suggesting [Petitioner]^ motive behind the killing. On the evening of the murder, Kimberly had finished packing and was planning to move to Sacramento in a few days with the children, without [Petitioner]. Although Kimberly and [Petitioner] had argued at other times during the month about her moving to Sacramento, the jury could reasonably infer that the intensity of [Petitioner]^ feelings that Kimberly was “trying to get away from [him] and he wasn’t having none of that” increased when her packing was completed on the night of the murder. Even if a motive is unreasonable or incomprehensible, a jury can reasonably infer the [Petitioner] harbored such motive and acted on it. (People v. Pensinger (1991) 52 Cal.3d 1210, 1238 [278 Cal.Rptr. 640, 805 P.2d 899].)

[Petitioner] cites People v. Rowland (1982) 134 Cal.App.3d 1 [184 Cal.Rptr. 346] in support of the proposition that without more, strangulation alone is insufficient to show premeditation and deliberation. We do not disagree with that proposition, but conclude that Rowland is distinguishable. In Rowland there was minimal evidence of planning and no evidence of motive or manner of killing to support a finding of premeditation and deliberation. (Id. at p. 9 [184 Cal. Rptr. 346].) In this case, there was strong evidence of the manner of killing as well as evidence of motive.

[Petitioner] cites People v. Bender (1945) 27 Cal.2d 164 [163 P.2d 8] and People v. Hopper (1956) 145 Cal.App.2d 180 [302 P.2d 94] for the proposition that evidence of past marital disputes is not substantial evidence of a preconceived motive at the time of the killing. In Bender, the defendant strangled his wife and the strangulation was found to be a contributing factor in her death. (Id. at p. 170 [163 P.2d 8].) Their eight-month married life had been marked by heavy drinking, violent quarrels, reconciliations, discussions of the wife’s intention to have the marriage annulled, and their intentions to commit suicide. (Id. at pp. 167-168 [163 P.2d 8].) The court concluded that the evidence suggested eight months of violent marital disagreements which, after several hours of drunken quarreling, culminated in murder. (Id. at p. 179 [163 P.2d 8].) The court also concluded that there was no evidence of the defendant’s motive at the time of the killing. (Ibid.) The court stated, “The picture suggests reasons for and the facts of quarreling between decedent and [the] defendant but leaves only to conjecture and surmise the conclusion that [the] defendant either arrived at or carried out the intention to kill as the result of a concurrence of deliberation and premeditation. Overwhelmingly opposed to such conjecture or surmise, and consistently evidenced by every circumstance is the rationale of a tempestuous quarrel, hot anger, and a violent killing.” (Id. at pp. 179-180, 163 P.2d 8.) In addition -to concluding that the jury had been erroneously instructed on the terms “deliberate” and “premeditate” and that the error was prejudicial, the court concluded that there was no substantial evidence of premeditation and deliberation. (Id. at p. 186 [163 P.2d 8].) Again, Bender is distinguishable. In that case, there was only minimal discussion of the manner of the killing. There was evidence of manual strangulation and head injury, but the cause of the head injury was unknown. There was no evidence regarding the length of time of the assault or the strangulation. In this case, there was evidence from which the jury could reasonably infer that the strangulation took minutes and was interrupted by Kimberly’s verbal and physical attempts to defend herself, during which [Petitioner] had time for reflection. In addition, evidence of motive in this case was presented through the testimony of Jefferson, who said [Petitioner] told him essentially that he could not accept Kimberly’s moving to Sacramento without him, and evidence that the move was imminent.

For similar reasons, [Petitioner's reliance on People v. Hopper, supra, 145 Cal.App.2d 180 [302 P.2d 94] is misplaced. In that case the defendant killed his wife after 10 years of marriage during which the defendant’s occasional threats and acts of violence against his wife were interspersed by amicable relations. (Id. at p. 190 [302 P.2d 94].) The wife died from injuries resulting from a beating. (Id. at pp. 183-184 [302 P.2d 94].) Citing Bender, the court concluded that there was no showing of the defendant’s motive or intent to kill his wife at the time of the killing. (Hopper, at pp. 186-189 [302 P.2d 94].) The court concluded that there was no evidence that the beating that resulted in the wife’s death differed from those in the past, i.e., was the result of premeditation and deliberation. (Id. at p. 190 [302 P.2d 94].) The instant case is distinguishable because there was evidence of motive and there was evidence from which the jury could infer that the strangulation was interrupted by Kimberly’s attempts to defend herself, giving [Petitioner] the time and opportunity to reflect on his actions.

In light of our determination that the record contains substantial evidence to support the jury’s findings of premeditation and deliberation, we reject [Petitioner]^ contention that his section 1118.1 motion was erroneously denied.

(Resp’t Ex. 6 at 10-13 (brackets added and footnote in original).)

Viewing the evidence in the light most favorable to the prosecution, and resolving any conflicting inferences in its favor, the Court finds that a rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Payne, 982 F.2d at 338. That is, a rational juror could have found that Petitioner was guilty of first degree murder based upon the ample evidence reviewed by the state court above.

The state court’s rejection of Petitioner’s insufficiency of the evidence claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). Accordingly, this claim for habeas corpus relief is DENIED.

B. Trial Court Erred in Admitting Evidence of Prior Acts of Domestic Violence

Petitioner claims that the admission of his prior uncharged acts of domestic violence under Section 1109 of the California Evidence Code violated his right to due process. He also contends the trial court abused its discretion by admitting such evidence, which he argues should have been excluded under Section 352 of the California Evidence Code. The appellate court summarized the factual basis for Petitioner’s claim as follows:

Prior to trial, the prosecutor moved pursuant to Evidence Code sections 1101 (evidence of other crimes to prove conduct) and 1109 to introduce evidence regarding the two prior instances of domestic violence in which [Petitioner] assaulted Boyd. The prosecutor argued that the prior acts were preceded by [Petitioner] getting drunk and the victim trying to leave him, and were admissible to establish identity, motive and intent. The trial court ruled admissible the pri- or domestic violence evidence regarding Boyd. Prior to Boyd’s testifying, the court gave the jury a limiting instruction pursuant to CALJIC No. 2.50.02 regarding the purposes for which the jury could consider evidence of prior instances of domestic violence.

(Resp’t Ex. 6 at 13 (brackets added and footnotes omitted).)

Section 352 provides as follows: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Cal. Evid.Code § 352.

Section 1101 of the Evidence Code provides as follows:

(a)Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.

(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.

(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.

Id. § 1101.

Section 1109 of the Evidence Code permits the admission of evidence of the petitioner’s offenses involving domestic violence, subject to a balancing test of the evidence’s probative value against its prejudicial effect, in accordance with section 352. Id. § 1109(a)(1). Subsection (a)(1) of section 1109 provides:

(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.

Id.

The appellate court addressed Petitioner’s argument as follows:

Although conceding that at least three courts of appeal have rejected due process challenges to Evidence Code section 1109, [Petitioner] contends that that section violates federal due process standards on its face and as applied to him. In particular, he argues that admission of prior acts to show propensity to commit a crime and to permit a jury to convict upon such evidence deprives a criminal defendant of his right to due process and a fair trial. In addition, he argues that as applied to him, Evidence Code section 1109 improperly reduced the prosecution’s burden of proof, permitted conviction based solely upon character evidence and status and deprived him of a fair trial. He asserts that the prior acts were so remote and dissimilar that they did not show a propensity to commit murder and prejudiced the jury’s determination of the degree of the homicide.

Although the Supreme Court has not addressed the constitutionality of Evidence Code section 1109, it upheld the parallel provision of Evidence Code section 1108 (admission of prior sex offenses) against a due process challenge. (See People v. Falsetta (1999) 21 Cal.4th 903 [89 Cal.Rptr.2d 847, 986 P.2d 182].) [Petitioner]'s constitutional arguments regarding Evidence Code section 1109, subdivision (a)(1) have been rejected by various Courts of Appeal. (See People v. Jennings (2000) 81 Cal.App.4th 1301, 1310 [97 Cal.Rptr.2d 727]; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1029 [92 Cal.Rptr.2d 208]; People v. Johnson (2000) 77 Cal.App.4th 410, 416-420 [91 Cal.Rptr.2d 596].) We adopt and apply the reasoning of those cases in rejecting [Petitionerj’s constitutional challenge.

Alternatively, [Petitioner] argues that the remoteness and dissimilarity of the prior domestic violence compelled its exclusion under Evidence Code section 352. Evidence Code section 1109 requires that the introduction of prior domestic violence evidence be based on an evaluation pursuant to Evidence Code section 352 of whether the evidence is more probative than prejudicial. The careful weighing of prejudice against probative value is necessary to protect a [Petitioner's due process right to a fundamentally fair trial. (People v. Jennings, supra, 81 Cal.App.4th at p. 1314 [97 Cal.Rptr.2d 727].) A trial court’s exercise of discretion under Evidence Code section 352 will not be overturned on appeal absent a manifest abuse of that discretion. (Jennings, at p. 1314 [97 Cal.Rptr.2d 727].)

[Petitioner] asserts that the offenses against Boyd committed in 1995 and 1997 should have been precluded as remote. It is noteworthy that Evidence Code section 1109, subdivision (e) has a remoteness provision stating that evidence of acts occurring more than 10 years before the charged offense is inadmissible, unless the court determines that admission of the evidence is in the interest of justice. The offenses against Boyd were committed within five years of Kimberly’s murder, and thus were not too remote in time, pursuant to either Evidence Code section 1009[sic] subdivision (e) or case law, so as to diminish their probative value. (See People v. Campbell (1994) 23 Cal.App.4th 1488, 1497, fn. 14 [28 Cal.Rptr.2d 716] [10-year-old conviction not too remote in time to be admissible].)

In reliance on People v. Harris, (1998) 60 Cal.App.4th 727, 730 [70 Cal.Rptr.2d 689], [Petitioner] also asserts that the prior acts against Boyd involved [Petitioner]^ use of weapons or fists while drunk and should have been excluded because they are neither similar to the charged offense nor probative of a propensity to kill his wife. [Petitioner] does not dispute that the prior acts against Boyd were acts of domestic violence. In Harris, the court determined that the trial court had erroneously admitted under Evidence Code section 1108, evidence of a 23-year-old prior, extremely violent sexual assault in a case involving nonviolent sexual assaults against women whose lack of consent was based on their mental incapacity. (People v. Harris, supra, 60 Cal.App.4th at pp. 730-736 [70 Cal.Rptr.2d 689].) Harris concluded that the prior crimes evidence was remote, inflammatory, “nearly irrelevant,” and likely to confuse and distract the jury. (Id. at pp. 737-741 [70 Cal. Rptr.2d 689].)

We conclude Harris is inapposite. Here, the prior acts of domestic violence were significantly less inflammatory than the charged killing. In addition, the prior incidents were probative of [Petitioner's propensity for violence against female domestic partners. Also, the Boyd incidents were relatively recent and her testimony required less than 20 pages of trial transcript. Finally, nothing about the prior acts of domestic violence against Boyd would likely confuse or distract the jury, and the prior incidents were not likely to evoke an emotional bias against [Petitioner], [Petitioner] has failed to establish that admission of the prior domestic violence incidents was an abuse of discretion.

(Resp’t Ex. 6 at 14-16 (brackets added).)

While no federal court has specifically ruled on the constitutionality of section 1108, several circuit courts have upheld the use of propensity evidence under Rules 413 and 414 of the Federal Rules of Evidence. See, e.g., United States v. Castillo, 140 F.3d 874, 881 (10th Cir.1998); United States v. Mound, 149 F.3d 799, 801 (8th Cir.1998).

The Ninth Circuit has upheld the constitutionality of Rule 414, permitting admission of evidence of similar crimes in child molestation cases. See United States v. LeMay, 260 F.3d 1018, 1024-25 (9th Cir.2001), cert. denied, 534 U.S. 1166, 122 S.Ct. 1181, 152 L.Ed.2d 124 (2002). The court held in LeMay that Rule 414 is not unconstitutional because it is limited in its function by Rule 403. Id. at 1026-27. Rule 403 directs judges to exclude any evidence submitted under Rule 414 that is more prejudicial than probative. Id. at 1027. The court reasoned that this balancing process eliminates any due process concerns from Rule 414, stating: “As long as the protections of Rule 403 remain in place to ensure that potentially devastating evidence of little probative value will not reach the jury, the right to a fair trial remains adequately safeguarded.” Id. at 1026.

The reasoning of LeMay applies equally to this case because the California rules are analogous to the federal rules. Evidence that is admissible under sections 1109 is limited by section 352. See Evid. Code §§ 1108(a), 1109(a)(1). Section 352 parallels Rule 403 of the Federal Rules of Evidence because it permits a trial judge to exclude evidence when its probative value is substantially outweighed by its prejudicial effect. See Evid.Code § 352. As the California Supreme Court held in Falsetta, the requirement under section 352 to balance the prejudicial effect of the evidence against its probative value ensures that evidence admitted under section 1109 will not infringe on the right to a fair trial guaranteed under the Due Process Clause. 21 Cal.4th at 913, 89 Cal.Rptr.2d 847, 986 P.2d 182.

Finally, the United States Supreme Court has never held that the admission of evidence of prior crimes violates the right to due process. See Estelle v. McGuire, 502 U.S. 62, 75 & n. 5, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (declining to rule on the constitutionality of propensity evidence); Alberni v. McDaniel, 458 F.3d 860, 864-67 (9th Cir.2006). Because habeas relief may not be granted unless the state court decision was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, see 28 U.S.C. § 2254, and there is no Supreme Court precedent that admission of propensity evidence violates due process, the decision of the appellate court cannot be said to have contradicted or unreasonably applied clearly established federal law in upholding the constitutionality of sections 1108 and 1109. See Alberni, 458 F.3d at 866-67 (under AEDPA, habeas relief cannot be granted on claim Supreme Court has reserved); id. at 874-75 (although habeas relief may still be available after AEDPA on reserved issues, as to propensity evidence there is insufficient Supreme Court authority of any kind to clearly establish a due process right not to have such evidence admitted) (McKeown, J., concurring in part and dissenting in part).

The state court’s decision regarding the admission of prior acts of domestic violence was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). Accordingly, this claim for habeas corpus relief is DENIED.

C. Inadmissible Hearsay

Petitioner alleges that, under section 352 of the California Evidence Code, the court erred in admitting testimony by Robin Jackson, Kimberly’s cousin, that a week before the murder, Kimberly said, “He’s always trying to intimidate me.” (Resp’t Ex. 6 at 10.) As mentioned above, section 352 allows the court to exclude evidence if its probative value “substantially outweighs” the probability its admission will cause undue consumption of time or create “substantial danger” of undue prejudice. See Evid.Code § 352.

Section 1250 of the Evidence Code contains the state of mind exception to the hearsay rule and provides as follows:

(a) Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain the acts or conduct of the declarant.

Id. § 1250.

Section 1221 of the California Evidence Code provides the adoptive admissions exception to the hearsay rule:

Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.

Id. § 1221.

The appellate court summarized the factual basis for Petitioner’s claim as follows:

Prior to trial, the prosecution moved in limine to introduce this and five other hearsay statements by Kimberly under the state of mind exception to the hearsay rule (Evid.Code, § 1250) to show that at some point prior to her death, Kimberly was afraid of [Petitioner]. The prosecution argued that Kimberly’s fearful state of mind was relevant to her intent to move to Sacramento, and, therefore, to the issues of identity, intent and motive. [Petitioner] filed a written objection to the motion, arguing that the challenged statement was inadmissible hearsay, had no tendency to prove anything about Kimberly’s state of mind regarding any material issue, and was unduly prejudicial and should be excluded under Evidence Code section 352.

Although the record is not entirely clear, it appears that the court never made a definitive ruling regarding the admissibility of the challenged statement. At the in limine hearing the court stated, “the statement allegedly attributed to [Petitioner] is that, ‘He’s always trying to intimidate me,’ and in his response, ‘If I’m going to kick your ass, I don’t need to intimidate you to kick your ass, I’ll just kick your ass,’ I don’t know if she can attribute that statement to [Petitioner] specifically or not, or just to anybody. And that’s a little too vague for me at this point.[H] Before we get into that particular statement, I would want to have a 402 hearing about it and hear the circumstances. [¶] ... [¶] So, this may not be the clearest ruling, but essentially I’m stating that you can introduce in your case-in-chief, [prosecutor], evidence of her state of mind about wanting to leave, because I think it does go to motive .... [¶] But all of the stuff she was in fear of the [Petitioner], unless I’m shown some specific case otherwise that matches the facts in this case, my ruling would be you can’t use that in your case-in-chief; but if the defense introduces all of these letters [showing a positive relationship between [Petitioner] and Kimberly while he was in custody], then you can certainly in my ruling use them subject to a statement-by-statement ruling of the Court about what can be used.”

Thereafter, the court never made an express ruling on the admissibility of the challenged statement and [Petitioner] did not object when the prosecutor referred to the challenged statement in opening argument, or when it was adduced during Robin’s testimony.

(Resp’t Ex. 6 at 11 (brackets added and footnote omitted).)

Petitioner alleges that the “court erred prejudicially in admitting Kim’s statement suggesting she feared [Petitioner to show Kim’s state of mind, denying [P]etitioner due process of law and fair trial.” (Pet. at 2.)

The appellate court found the evidence admissible as follows:

We conclude that when Kimberly’s statement is viewed in the context of a three-way conversation by her, Robin and [Petitioner], it falls within the adoptive admissions exception to the hearsay rule. (Evid.Code, § 1221.) “The adoptive admissions exception generally permits hearsay to be admitted against a party, when that party has adopted or agreed that a statement originally made by someone else is true.” (People v. Castille (2003) 108 Cal.App.4th 469, 479 [133 Cal.Rptr.2d 489], fns. omitted.)

The two requirements for the introduction of an adoptive admission are: (1) the party must have knowledge of the content of another person’s hearsay statement, and (2) having such knowledge, the party, by words or conduct, must have indicated his adoption of, or belief in, the truth of the hearsay statement. (Id. at p. 480,133 Cal.Rptr.2d 489; accord, People v. Silva (1988) 45 Cal.3d 604, 623, 247 Cal.R