Full opinion text
OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS LEGGE, District Judge. I. This is a petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 by James Richard Odie, a prisoner in state custody. Petitioner is under sentence of death. Petitioner is represented by counsel appointed to him by this court pursuant to N.D.Cal.Local R. 296, ¶ 4. The petition alleges seven claims of constitutional error in petitioner’s state trial and death sentence. The state has filed an answer denying that the trial and sentence were unconstitutional. The state has not argued that any of petitioner’s claims raise “new constitutional rules” which cannot be considered by this court under Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); and this court is not required to consider the question sua sponte. See Collins v. Youngblood, — U.S.-, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990). Petitioner has filed a traverse and, after oral argument, the petition was submitted to the court for decision. This court has reviewed the record of this proceeding, the state court record, the briefs and arguments of counsel, and the applicable authorities. It has done so with the principle in mind that “the federal judiciary must ... take particular care in death penalty cases to give patient and thoughtful review of claims presented by petitioners through their appointed counsel.” Mercer v. Armontrout, 864 F.2d 1429, 1433 (8th Cir.1988). II. The facts of the crime of which petitioner was convicted are not directly relevant to this petition. Those facts are undisputed here, and are set forth in the California Supreme Court’s opinion affirming petitioner’s conviction. See People v. Odle, 45 Cal.3d 386, 394-401, 247 Cal.Rptr. 137, 754 P.2d 184, cert. denied, 488 U.S. 917, 109 S.Ct. 275, 102 L.Ed.2d 263 (1988). Four of petitioner’s seven claims in this petition are based upon an extensive brain injury which he suffered before his commission of the crime. In 1973 petitioner was involved in a serious auto accident. He suffered a skull fracture, and the temporal lobe of his brain was lacerated and hemorrhaged. After almost a year of documented mental difficulties, the attending neurosurgeon performed an operation and removed a substantial portion of the temporal lobe region of petitioner’s brain. The procedure is referred to as a temporal lo-bectomy. 20 RT 24-27. Petitioner’s surgeon testified that after the operation, petitioner was irrational, emotional and angry. 20 RT 25-35. Petitioner complained of spells of losing control, and he expressed his fear that he might hurt or kill someone. 20 RT 30-35. Petitioner’s acquaintances, friends and relatives testified to varying degrees of marked change in petitioner’s behavior and disposition after the 1973 accident. 20 RT 88-95; 17 RT 10-15, 21; 28 RT 50-60; 13 RT 78. Petitioner’s 1980 and 1982 EEG tests each revealed at least some abnormalities. Petitioner presented expert testimony to the effect that some temporal lobec-tomy patients have been known to become excessively emotional and irrational and to lose control of themselves. 20 RT 23; 21 RT 40; 21 RT 102-04. In rebuttal, the state introduced evidence of petitioner’s criminal record prior to and since the accident. 21 RT 140-42. The state also introduced expert testimony that there was no automatic relationship between petitioner’s injury and his criminal behavior. The state’s expert testified that there was no evidence of diminished capacity in connection with the crime. The expert’s opinion was that petitioner's actions indicated that he was able to and did think rationally during the commission of the crime. 22 RT 8-19. The jury heard the evidence, including the conflicting medical evidence, and convicted petitioner of the crime. At the conclusion of the penalty phase of the trial, the jury sentenced him to death. Most of petitioner’s claims here do not concern his conviction, but instead pertain to the penalty phase of his trial and the resulting sentence of death. III. Petitioner’s first contention is that at the penalty phase of his trial, the jury was precluded by the trial court’s instructions from adequately considering evidence of his brain injury, background and character. Petitioner has a constitutional right to have his penalty jury hear and be able to give effect to all relevant mitigating evidence, including evidence of his background and character. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Petitioner’s penalty jury was instructed using the language of CALJIC No. 8.84.1: 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. 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 criminal activity by the defendant which involves 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 pri- or 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 [sic] was a participant in the defendant’s homicidal conduct or consented to the homicidal act. (f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to a moral justification or extension [sic] or extenuation for his conduct. (g) Whether or not the defendant acted under extreme duress or under the substantial domination of a person. (h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of a mental disease or defect or the effects of intoxication. (i) The age of the defendant at the time of the crime. (j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor and, (k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime. 29 RT 89-90. 'The trial court augmented this CALJIC instruction with the following instructions requested by petitioner: Mitigation is defined as an abatement or diminution of a penalty or punishment imposed by law. Mitigating circumstances are such so as not to constitute a justification or excuse for the offense in question, but which in fairness and mercy may be considered as extenuating or reducing the degree of moral culpability. You were previously instructed in the guilt phase of this trial that sympathy or pity for a defendant should not influence your consideration of the evidence. In this, the penalty phase of the trial, the jury may properly consider sympathy or pity for the defendant in determining whether to show mercy and spare the defendant from execution. In deciding whether the defendant, Mr. Odie, should be sentenced to death or to life in prison without the possibility of parole, you must weigh the mitigating circumstances against the aggravating circumstances that you find to be established by the evidence. The fact that you have previously found Mr. Odie guilty beyond a reasonable doubt of the crimes of murder in the first degree is not in itself an aggravating circumstance. 29 RT 90-91. Petitioner’s contention is that the enumerated CAUIC mitigating factors— specifically factors (d), (h) and (k), which pertain most closely to the evidence of his brain injury — limited the jury’s consideration of such mitigating evidence to events which were directly connected to the crime. Petitioner argues that this limitation is constitutionally impermissible, because it precludes the jury’s consideration of his general background and character, unrelated to the specific crime. Factor (d) speaks of whether “the offense was committed.” Factor (h) says “at the time of the offense.” Factor (k) is in terms of “the crime.” Petitioner contends that although the jury heard the evidence of his brain injury and its possible consequences, the jury was precluded from giving effect to that evidence unless it was directly connected to the crime. Hence, petitioner argues, the jury was prevented by the instructions from concluding that as a result of his brain injury and all of its effects, death was not the appropriate punishment. Pet. at 45-52. The California Supreme Court rejected petitioner’s argument. See Odle, 45 Cal.3d at 421, 247 Cal.Rptr. 137, 754 P.2d 184. It held that any inference in CALJIC 8.84.1 that the mitigating evidence must be directly connected to the crime itself was cured in this case by the prosecutor’s arguments, defense counsel’s arguments, and the additional jury instructions given at petitioner’s request. Id. at 417-19, 247 Cal.Rptr. 137, 754 P.2d 184. The California Supreme Court has noted possible ambiguity in CALJIC 8.84.1. In People v. Easley, 34 Cal.3d 858, 878, 196 Cal.Rptr. 309, 671 P.2d 813 (1983), the court said that “there is some force to [the] argument that the wording of [CAUIC 8.84.1] is potentially confusing....” In an often-cited footnote, the court suggested that “[i]n order to avoid potential misunderstanding in the future, trial courts ... should inform the jury that it may consider as a mitigating factor ‘any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime,’ and any other ‘aspect of [the] defendant’s character or record ... that the defendant proffers as a basis for a sentence less than death.’ ” Id. at 878 n. 10, 196 Cal.Rptr. 309, 671 P.2d 813. The Easley court, however, found it unnecessary to decide the constitutionality of the instruction. Id. at 878, 196 Cal.Rptr. 309, 671 P.2d 813. The issue which petitioner raises has now been resolved by the United States Supreme Court’s recent decision in Boyde v. California, — U.S. - 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), decided after this petition was filed. In Boyde, the Court was presented squarely with the question of the constitutionality of CALJIC 8.84.1. Counsel in Boyde advanced the same argument that petitioner does here: Petitioner contends that none of the 11 statutory factors in CAUIC 8.84.1 allowed the jury to consider non-crime-related factors, such as his background and character, which might provide a basis for a sentence less than death. Boyde, 110 S.Ct. at 1196-97. The Boyde Court first set forth the standard for reviewing jury instructions for alleged constitutional error. After noting that its prior decisions had lacked uniformity on the standard (see Boyde 110 S.Ct. at 1197), the Court held that: the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. Although a defendant need not establish that the jury was more likely than not to have been impermissi-bly inhibited by the instruction, a capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such inhibition. Id. 110 S.Ct. at 1198. The Court then applied this standard to CAUIC 8.84.1, and held: [W]e think there is not a reasonable likelihood that Boyde’s jurors interpreted the trial court’s instructions to prevent consideration of mitigating evidence of background and character. The jury was instructed, according to factor (k), that ‘you shall consider ... [a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime,’ and the term ‘extenuate’ was defined by the court to mean ‘to lessen the seriousness of a crime as by giving an excuse.’ ... 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 ease such evidence would counsel imposition of a sentence less than death. The instruction did not, as petitioner seems to suggest, limit the jury’s consideration to ‘any other circumstance of the crime which extenuates the gravity of the crime.’ The jury was directed to consider any other circumstance that might excuse the crime, which certainly includes a defendant’s background and character. Id. 110 S.Ct. at 1198-99 (emphasis in original). The Court also noted that other factors contributed to its holding, including the fact that CAUIC 8.84.1 allows for other mitigating factors not associated with the crime itself such as absence of prior criminal activity and defendant’s youth. Id.; see CAUIC 8.84.1(c), (i). “When factor (k) is viewed together with those instructions, it seems even more improbable that jurors would arrive at an interpretation that precludes consideration of all non-crime-related evidence.” 110 S.Ct. at 1199. The Court also discussed in support of its holding that the defendant had introduced evidence of his background and character. “[Ojver 400 pages of trial transcript [] related to petitioner’s background and character_” Id. at 1199. “[I]n our view reasonable jurors surely would not have felt constrained by the factor (k) instruction to ignore all of the evidence presented by petitioner during the sentencing phase.” Id. at 1199-1200 (emphasis in original). Applying these holdings and statements to petitioner’s claim here, this court concludes that the state trial court did not commit constitutional error by instructing the jury in the language of CAUIC 8.84.1. The text of CAUIC 8.84.1 was given substantially verbatim, as it was in Boyde. The non-crime-related factor instructions that the Boyde Court found significant were also given in this case. See 29 RT 89-90. The defense presented substantial evidence of petitioner’s background and character — specifically his 1973 injury, his subsequent temporal lobectomy, and the behavior changes it precipitated. Since Boyde was decided after this petition was filed and briefed, this court asked for supplemental briefing on the applicability of Boyde. In that briefing, petitioner urges certain distinctions between Boyde and his case. Petitioner argues that in addressing factor (k), the prosecutor in Boyde specifically discussed defendant’s background, and did not argue that factor (k) was limited to matters directly connected to the crime itself. Petitioner correctly notes that in this case the prosecutor, in discussing factor (k), stated: Other extenuating circumstances regarding the gravity of the crimes. [Referring to factor (k) ] That is, is there anything about the crimes that you can think of — sit down and say to yourself I’m going to try to think of anything in Jim Odle’s favor regarding how he committed those crimes which are [sic] extenuating, and you won’t be able to do it because there is nothing extenuating about those crimes. 29 RT at 31-32. The prosecutor referred three times to the “crimes,” as if to limit the jury’s consideration of the mitigating evidence to that directly connected to the crimes themselves. Prosecutorial misstatements have sometimes been recognized as having a decisive effect on a jury, and may thus render a conviction and sentence unconstitutional. See Boyde, 110 S.Ct. at 1200. The California Supreme Court noted the prosecutor’s comments in its opinion affirming petitioner’s conviction and sentence. Odle, 45 Cal.3d at 418 n. 13, 247 Cal.Rptr. 137, 754 P.2d 184. The court observed that “[i]n numerous other references, however, the prosecutor gave the jury the opposite (and correct) message that the jury should properly consider all of defendant’s character and mental condition evidence_” Id. at 418, 247 Cal. Rptr. 137, 754 P.2d 184 (emphasis in original). The prosecutor also said: [Y]ou are the judges of defendant’s character, his history, and what should be done with him.... you are entitled to feel pity for him, sympathy for him. 29 RT 8. [T]he law is that the jury may take into account sympathy factors for the defendant because you are at the sentencing phase, you are acting like the judge who looks at the probation report, covers the guy’s entire background, you are looking at his record, any social factors, and you are looking at his mental workup, and you are looking at the factors of the crime, and then you are deciding what should be done with this man. And that’s what you are doing. So sympathy is part of it and you would be wrong not to at least say we’ll consider it. We are talking about Jim Odie, his character, his background, what he did. 29 RT 33. Further, the prosecutor’s argument regarding factor (k) did not refer to factors (d) and (h). Even if the jury felt constrained under factor (k), the argument did not restrict the jury’s consideration of petitioner’s brain injury under factors (d) and (h). The arguments of the prosecutor, like the instructions of the court, must be judged in the context in which they are made. Boyde, 110 S.Ct. at 1200; Greer v. Miller, 483 U.S. 756, 766, 107. S.Ct. 3102, 3109, 97 L.Ed.2d 618 (1987); Darden v. Wainwright, 477 U.S. 168, 179, 106 S.Ct. 2464, 2470, 91 L.Ed.2d 144 (1986). The passages quoted above make it less “reasonably likely” that the jury was misled into thinking that it could not consider petitioner’s non-crime-related evidence in deciding the appropriate penalty. Another part of the context in which jury instructions must be viewed is defense counsel’s argument. Defense counsel repeatedly returned to the theme that the jury must consider petitioner’s history and character in deciding the appropriate penalty: [W]hat the jury has to do in a penalty case is really to consider anything that they feel or an individual feels is appropriate. As an example: you are allowed to consider mitigation or extenuation.... Mitigating circumstances are such as to not constitute a justification or excuse of the offense in question, but which in fairness and mercy may be considered as extenuating or reducing the degree of moral culpability. So the concept of mercy enters your deliberation as it does not in the guilt phase. In this the penalty phase of the trial, the jury may properly consider sympathy or pity for a defendant in determining whether to show mercy and spare the defendant from execution.... So in the other circumstance which is not a legal excuse, I’m not talking about excusing his conduct, I’m talking about considering his conduct and trying to make a determination whether there is an extenuating circumstance that is sufficient in your mind not to require him to be executed. 29 RT 66-67. Defense counsel then spoke of the accident and the brain injury petitioner sustained. “What we will never know is what could have happened had that accident not occurred. And you must consider that.” 29 RT 73. Counsel then devoted seven pages of argument to the mental impairment evidence and the need for its consideration by the jury. 29 RT 73-80. Finally, counsel summed up, in part, by asking: is [the brain injury] not an impairment of the mental capacity which must be considered an extraordinary mitigating factor when you have to determine whether Jim Odie has to be killed. 29 RT 82. There could be no mandate in justice or fairness to execute a man whose human capacities were altered when part of his brain was removed. The law envisions this kind of mitigating factor as one that must be given significant weight in the terrible decision whether a man is killed or allowed to live. 29 RT 86. These arguments of defense counsel are part of the context of the instructions to the jury. There can be little doubt that they served to lessen the possibility that the jury was misled into thinking that it could consider only the circumstances surrounding the crime itself in deciding the proper penalty. The context of the challenged jury instructions also includes the additional jury instructions which were given at petitioner’s request. In addition to CAUIC 8.84.1, the trial judge gave the instructions requested by petitioner which are quoted above on page 7. 29 RT 90-91. The additional instructions diminished any likelihood that the jury was misled into resisting consideration of petitioner’s brain damage, history and character. The California Supreme Court “conclude[d] the jury was not misled ... and ... was in fact left with the correct understanding that it was to consider defendant’s mental condition, and his character, as mitigating factors in determining the appropriate penalty.” Odle, 45 Cal.3d at 419, 247 Cal.Rptr. 137, 754 P.2d 184 (citations omitted). This court concludes that petitioner has not shown that there was a reasonable likelihood that the jury was misled. Boyde’s holding in support of CAUIC 8.84.1, combined with both counsels’ closing arguments and the supplemental jury instructions given at petitioner’s request, compel the conclusion that this claim of constitutional error must be dismissed. IV. Petitioner’s second claim is that California Penal Code section 190.3 impermis-sibly removed sentencing discretion from the jury by making death mandatory if petitioner did not raise sufficient mitigating evidence to outweigh the aggravating evidence. Cal.Penal Code Section 190.3 provides in relevant part: After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circum.stances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without possibility of parole. This statute forms the basis of CAUIC 8.84.2. And CAUIC 8.84.2 was used, substantially verbatim, in instructing the jury in the death penalty phase. See 29 RT 95. Petitioner makes two arguments in support of the constitutional invalidity of this instruction. First, petitioner argues that the mandatory language impermissibly bound the jury’s discretion. That is, petitioner asserts that instructing the jury that it “shall ” impose death if the aggravating circumstances outweigh the mitigating circumstances interferes with the individualized sentencing required by the Constitution. Second, petitioner argues that the instruction sets up a presumption that death is the proper penalty unless the defendant comes forward with enough mitigating evidence, and such a presumption is unconstitutional. Death penalty statutes with mandatory language were recently reviewed by the U.S. Supreme Court in Blystone v. Pennsylvania, — U.S.-, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990). The statute at issue in Blystone provided in relevant part as follows: [T]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance ... and no mitigating circumstances or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. 42 Pa.Cons.Stat. § 9711(c)(l)(iv) (1988); Blystone, 110 S.Ct. at 1081. Petitioner here agrees that at least with respect to the issue of the mandatory language of the statute, the Pennsylvania statute is “substantially similar” to Cal.Penal Code section 190.3. Pet. at 53 n. 6. The Supreme Court in Blystone upheld the statute as constitutional. The Court rejected a challenge to the mandatory language based on Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978): We think that the Pennsylvania death penalty statute satisfies the requirement that a capital-sentencing jury be allowed to consider and give effect to all relevant mitigating evidence. Blystone, 110 S.Ct. at 1082. The Court also rejected the challenge to the Pennsylvania statute made on the basis of Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976), which required “particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.” The Blystone Court held: Nor is the statute impermissibly ‘mandatory’ as that term was understood in Woodson or Roberts [ v. Louisiana, 428 U.S. 325, 333-34, 96 S.Ct. 3001, 3006-07, 49 L.Ed.2d 974 (1976) ]. Death is not automatically imposed upon conviction for certain types of murder. It is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime committed by the particular defendant, or that there are no such mitigating circumstances. The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence. Blystone, 110 S.Ct. at 1082-83 (footnotes omitted). In Boyde the Supreme Court relied on Blystone (which it had decided the week before) in rejecting a challenge to Cal.Penal Code section 190.3 nearly identical to petitioner’s present claim. The Court wrote: We need not discuss petitioner’s claim at length, because we conclude that it is foreclosed by our decision earlier this term in Blystone_ Although Bly-stone, unlike Boyde, did not present any mitigating evidence at the penalty phase of his capital trial, the legal principle we expounded in Blystone clearly requires rejection of Boyde’s claim as well, because the mandatory language of CAL-JIC 8.84.2 is not alleged to have interfered with the consideration of mitigating evidence. Petitioner suggests that the jury must have freedom to decline to impose the death penalty even if the jury decides that the aggravating circumstances ‘outweigh’ the mitigating circumstances. But there is no such constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence.... Petitioner’s claim that the ‘shall impose’ language of CALJIC 8.84.2 unconstitutionally prevents ‘individualized assessment’ by the jury, is thus without merit. Boyde, 110 S.Ct. at 1196. The instruction here in issue is not constitutionally infirm. There is no constitutional requirement that juries be free to decline to impose death when aggravating circumstances outweigh mitigating ones. The Supreme Court rejected this very argument in Boyde. Nor does the mandatory language of the instruction render it unconstitutional. Blystone, 110 S.Ct. at 1082-83. This court therefore concludes that Boyde and Blystone compel rejection of petitioner’s claim. Petitioner’s second argument stands on different footing. This argument focuses on the first of the enumerated factors in CALJIC 8.84.1: (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. Petitioner correctly notes that the circumstances of a murder are established at the guilt phase. Likewise, at least one special circumstance had to have been established in the guilt trial in order to subject him to a possible death penalty in the second phase. See Cal.Penal Code § 190.2. Petitioner asserts that under factor (a), he “enter[ed] the penalty phase already carrying at least one aggravating circumstance attributable to [his] crime.” Pet. at 56. In other words, under the California statute, if neither the prosecution nor the defense introduces any evidence of aggravation or mitigation in the penalty trial, the jury must impose the death sentence because the defendant, by definition, comes into the penalty trial with an aggravating circumstance already tipping the balance against him. The effect of a special circumstance finding in the guilt trial on the subsequent penalty trial has been noted by the California Supreme Court in People v. Brown, 40 Cal.3d 512, 541-42 n. 13, 230 Cal.Rptr. 834, 726 P.2d 516 (1985), rev’d on other grounds, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987): At a capital penalty trial, defendant has already been convicted of committing, without legal excuse, an intentional first degree murder with at least one “special circumstance” necessary to make him eligible for the death penalty.... It would be rare indeed to find mitigating evidence which could redeem such an offender or excuse his conduct in the abstract. Recognizing this, the statute requires at a minimum, that he suffer the penalty of life imprisonment without parole. (Emphasis in original). Petitioner therefore contends that this portion of the California statute amounts to a presumption that the sentence should be death. That is, if neither side introduces evidence at the penalty phase, the jury must return a verdict of death, and only the by bringing forward mitigating evidence can a defendant affect the presumption favoring death. The Ninth Circuit has held that a death penalty statute which presumes death to be the appropriate penalty, and which places on defendants the burden of proving otherwise, is unconstitutional. Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988) (en banc), cert. denied, — U.S.-, 110 S.Ct. 3287, 111 L.Ed.2d 795 (1990). In Adamson, the court held that: [i]n imposing this presumption [that death is the appropriate penalty] the [Arizona death penalty] statute precludes the individualized sentencing required by the Constitution. It also removes the sentencing judge’s discretion by requiring the judge to sentence the defendant to death if the defendant fails to establish mitigating circumstances by the requisite evidentiary standard, which outweigh the aggravating circumstances. Id. at 1042-43 (emphasis in original). However, the Supreme Court’s later decisions in Blystone and Boyde considered statutes that are in relevant part identical to the Arizona statute. And the Supreme Court found no presumption favoring death in those statutes. Petitioner here argues that the California statute presents an even greater burden for a defendant than does the Arizona statute, because the aggravating circumstance categories in the Arizona statute do not include the circumstances of the crime itself. Thus, petitioner argues, an Arizona defendant does not begin the sentencing phase with one aggravating circumstance already found against him. According to petitioner, whatever the status of the Ninth Circuit’s decision in Adamson may be after Boyde and Blystone, the present case goes beyond Adamson in that the California statute defines the weighing process in favor of the state. Petitioner asserts that the law applied in Adamson is still good law; specifically, that Adamson holds that a presumption of death, even coupled with unobstructed receipt and consideration of mitigating evidence, is unconstitutional. Adamson, 865 F.2d at 1041-42. This holding is in accord with the Eleventh Circuit’s decision in Jackson v. Dugger, 837 F.2d 1469 (11th Cir.), cert. denied, 486 U.S. 1026, 108 S.Ct. 2005, 100 L.Ed.2d 236 (1988). Thus, if the instructions at issue here, taken as a whole (see Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)), do give rise to a presumption of death as being the appropriate penalty, the instructions would be unconstitutional. This court has found no case answering the question of whether the aggravating circumstance of Cal.Penal Code section 190.3(a) amounts to a presumption in favor of the death penalty. In People v. Melton, 44 Cal.3d 713, 244 Cal.Rptr. 867, 750 P.2d 741, cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988), the California Supreme Court wrote approvingly of section 190.3(a). The court rejected a challenge, based on Cal.Penal Code section 654, to section 190.3(a). The court found unpersuasive the reasoning of the plurality in People v. Harris, 36 Cal.3d 36, 64-65, 201 Cal.Rptr. 782, 679 P.2d 433, cert. denied, 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984), and held that it is constitutional to permit the penalty jury to give independent aggravating weight to felonies committed in the course of the murder, even though some of those felonies may have been charged as special circumstances in the guilt trial. Melton, 44 Cal.3d at 766-68, 244 Cal.Rptr. 867, 750 P.2d 741. But the court did not address the issue of whether the statute was, in effect, a presumption of death, and if so whether it would be unconstitutional. In People v. Andrews, 49 Cal.3d 200, 260 Cal.Rptr. 583, 776 P.2d 285 (1989), cert. denied, — U.S.-, 110 S.Ct. 1536, 108 L.Ed.2d 775 (1990), the California Supreme Court considered a challenge to the “mandatory language” portion of CAUIC 8.84.-2. CAUIC 8.84.2 informs a penalty jury that it “shall” impose a penalty of death if it finds the aggravating circumstances outweigh the mitigating circumstances. The court rejected the argument that Jackson and Adamson compel the conclusion that such an instruction is improper. Andrews, 49 Cal.3d at 229-30, 260 Cal.Rptr. 583, 776 P.2d 285. The court distinguished Jackson and Adamson stating that the instructions in those cases: suffer from a similar defect: in each the sentencing entity is told that a sentence of death is the norm, and that a lesser penalty may be imposed only if the defense presents sufficient mitigating evidence. In both instances, the accused bore the burden of demonstrating that death was not an appropriate penalty. In contrast, [CAUIC 8.84.1] merely told the jurors that if they concluded the aggravating circumstances outweighed the mitigating circumstances, they were to impose a sentence of death; but if they determined the mitigating circumstances outweighed the aggravating circumstances, they were to impose a sentence of confinement in the state prison for life without the possibility of parole. Unlike the language involved in Jackson and Adamson, the language at issue here does not create a presumption in favor of death. Andrews, 49 Cal.3d at 230, 260 Cal.Rptr. 583, 776 P.2d 285. The California court did not discuss whether the first statutory aggravating circumstance category, section 190.3(a), operates as a presumption that death is the appropriate penalty. The court merely rejected the argument that Jackson and Adamson had undermined the constitutionality of CAUIC 8.84.2 standing alone. The issue of the effect of section 190.3(a) therefore remains open. However, this court must consider the effect of section 190.3(a) and CAUIC 8.84.-1(a) not in the abstract, but as they applied in petitioner’s trial. It comes to a question of what the jury was told, not “in artificial isolation, but ... viewed in the context of the overall charge.” Naughten, 414 U.S. at 147, 94 S.Ct. at 400. Petitioner’s argument, that the section 190.3(a) instruction burdened him with an aggravating circumstance before the prosecution introduced any penalty phase evidence, is answered by the next instruction which the jury was then given at petitioner’s request: In deciding whether the defendant, Mr. Odie, should be sentenced to death or to life in prison without the possibility of parole, you must weigh the mitigating circumstances against the aggravating circumstances that you find to be established by the evidence. The fact that you have ■previously found Mr. Odie guilty beyond a reasonable doubt of the crimes of murder in the first degree is not in itself an aggravating circumstance. 29 RT 91 (emphasis added). Thus, the jury was instructed that petitioner did not come to the penalty trial with any pre-existing aggravating factors. Whatever may be said about the bare language of a section 190.3(a) instruction, it cannot be said that it was “reasonably likely” that the jury in this case was left with the understanding that petitioner had an aggravating circumstance against him simply as a result of the guilty verdict. The jury was expressly instructed to the contrary. For the reasons stated, petitioner’s claims of constitutional error in the jury instructions must be dismissed. V. Petitioner’s next claim is that his death sentence violates the Eighth Amendment, because it is inherently disproportionate in light of his severe brain damage. The Eighth Amendment prohibits the infliction of cruel and unusual punishment. Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 2599, 91 L.Ed.2d 335 (1986). The scope of the prohibition against cruel and unusual punishment is measured by reference to “evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958); Ford, 477 U.S. at 406, 106 S.Ct. at 2600; Baumann v. Arizona Dep’t of Corrections, 754 F.2d 841 (9th Cir.1985). In defining those evolving standards, courts look to objective evidence of how society views a particular punishment. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 2953-58, 106 L.Ed.2d 256 (1989); Enmund v. Florida, 458 U.S. 782, 788-96, 102 S.Ct. 3368, 3371-76, 73 L.Ed.2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 593-97, 97 S.Ct. 2861, 2866-68, 53 L.Ed.2d 982 (1977). The chief indicia of society’s perception of punishments are the laws enacted by the country’s legislatures and the actions of sentencing juries. Penry, 109 S.Ct. at 2953. One aspect of the Eighth Amendment’s protection is the requirement that the punishment be proportionate to the crime and to the culpability of the defendant. In order to impose the death sentence, a state must prove the defendant’s personal blameworthiness or moral culpability for the acts committed. Enmund, 458 U.S. at 797-801, 102 S.Ct. at 3376-78; Tison v. Arizona, 481 U.S. 137, 146-52, 107 S.Ct. 1676, 1682-85, 95 L.Ed.2d 127 (1987); Haygood v. Younger, 769 F.2d 1350 (9th Cir.1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). The death penalty must be “directly related to the personal culpability of the criminal defendant.” California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring). A second aspect of the Eighth Amendment’s protection is the requirement that the penalty serve a valid penological purpose. Spaziano v. Florida, 468 U.S. 447, 460 n. 7, 104 S.Ct. 3154, 3162 n. 7, 82 L.Ed.2d 340 (1984); Zant v. Stephens, 462 U.S. 862, 876-77, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983); Enmund, 458 U.S. at 798-99, 102 S.Ct. at 3377-78. A punishment is constitutionally impermissible if it “makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering.” Coker, 433 U.S. at 592, 97 S.Ct. at 2866; Enmund, 458 U.S. at 798, 102 S.Ct. at 3377. Petitioner argues that (1) his brain injury so reduced his personal blameworthiness as to make the death penalty an unconstitutionally disproportionate punishment; and (2) execution of a person with such brain damage serves no valid penological purpose. The state replies that the U.S. Supreme Court’s holding in Penry is to the contrary. There have been few cases in which the Supreme Court has invalidated a death sentence on the basis of disproportionality or lack of a legitimate penological purpose. In 1977, the Court held that the death penalty for rape of an adult woman is punishment disproportionate to the crime, and therefore a violation of the Eighth Amendment. Coker, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982. In 1982, the Court held that the Eighth Amendment prohibits the execution of defendants who participate in a crime during the course of which a capital crime is committed, but did not themselves take, or attempt or intend to take a life, or intend that lethal force be used. Enmund, 458 U.S. at 797, 102 S.Ct. at 3376. In 1986, execution of the insane was held to violate the Eighth Amendment. Ford, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335. In 1988, the Court held that execution of minors who committed capital crimes while under the age of 16 was unconstitutional under the Eighth Amendment. Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988). No case has addressed the constitutionality of executing a person who has undergone a temporal lobectomy. However, in Penry, the Supreme Court found insufficient evidence of a national consensus against “executing mentally retarded people convicted of capital offenses for [it] to conclude that it is categorically prohibited by the Eighth Amendment.” Penry, 109 S.Ct. at 2955. In support of his argument on lack of proportionality, petitioner draws this court’s attention only to Fitzpatrick v. State, 527 So.2d 809 (Fla.1988). But Fitzpatrick is not instructive in analyzing this case. In Fitzpatrick, the Florida Supreme Court found that “[t]he record on resentencing is replete with evidence of Fitzpatrick’s substantially impaired capacity, his extreme emotional disturbance, and his low emotional age.” Id. at 811. The court then engaged in a proportionality analysis and concluded that “in comparison to other cases involving imposition of the death penalty, this punishment is unwarranted in this case.” Id. at 812. But that type of analysis does not necessarily agree with the method of analysis of the U.S. Supreme Court. Two separate kinds of proportionality review have been defined by the U.S. Supreme Court: Traditionally, ‘proportionality’ has been used with reference to an abstract evaluation of the appropriateness of a sentence for a particular crime. Looking to the gravity of the offense and the severity of the penalty, to sentences imposed for other crimes, and to sentencing practices in other jurisdictions, this Court has occasionally struck down punishments as inherently disproportionate, and therefore cruel and unusual, when imposed for a particular crime or category of crime. [The second] sort of proportionality review presumes that the death sentence is not disproportionate to the crime in the traditional sense. It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime. Pulley v. Harris, 465 U.S. 37, 42-43, 104 S.Ct. 871, 875-876, 79 L.Ed.2d 29 (1984) (citations omitted). The traditional proportionality review is required by the Constitution. The second, or “comparative” type of proportionality review, is not constitutionally required if the state’s sentencing scheme otherwise provides sufficient checks on arbitrariness. Id. at 50-51, 104 S.Ct. at 879-880. A number of states require a comparative proportionality review by statute. E.g., Ga.Code Ann. § 17-10-35(c)(3) (1988). In Pulley v. Harris, the Court held that in states which provide for a capital sentencing scheme with sufficient checks on arbitrary imposition of death sentences, an additional comparative proportionality review is not constitutionally required. 465 U.S. at 50-51, 104 S.Ct. at 879-880. The Court noted that the California capital sentencing scheme bears sufficient checks on arbitrariness so as not to require a comparative proportionality review. Id. at 53-54, 104 S.Ct. at 880-881. It was this “comparative” proportionality review in which the Florida Supreme Court engaged in Fitzpatrick. Because such a review is not mandated on federal habeas corpus, which authorizes relief only for federal constitutional violations, Fitzpatrick is inapposite. The state argues that petitioner’s brain disorder is analytically indistinguishable from that considered in Penry. In Penry, a “mildly to moderately retarded” petitioner, with an IQ of 54 and a “mental age” of 6.5, argued “that execution of a mentally retarded person like himself ... would be cruel and unusual because it is disproportionate to his degree of personal culpability.” Penry, 109 S.Ct. at 2941, 2956. Justice O’Connor then surveyed the current knowledge about the effect of mental retardation. She concluded that mentally retarded persons are not, by virtue of their mental retardation alone, incapable of acting “with the level of culpability associated with the death penalty.” Id. at 2957. However, the opinions of the individual Justices in Penry reveal that Part IV-C of Justice O’Connor’s opinion — the part dealing with the issue of proportionality — did not command a majority. Justices Brennan, Marshall, Stevens and Blackmun dissented from IV-C, stating that they would hold that it is unconstitutionally disproportionate to sentence a mentally retarded person to death. Id. at 2958, 2963. The Chief Justice, and Justices Scalia, White and Kennedy dissented from IV-C, stating that there is no place for such a proportionality analysis in Eighth Amendment jurisprudence. Id. at 2964. The precedential value of that part of Justice O’Connor’s opinion is therefore questionable. Again, however, this court must consider the issues not in the abstract, but in the context of the record in this case. The record of the trial contains expert testimony on the effects of petitioner’s temporal lobectomy. All of the testimony was to the effect that abnormalities in terms of rage, temper and the inability to maintain or regain control of oneself have been observed in some temporal lobectomy patients. See, e.g., 21 RT 40-42, 102, 115. However, the expert testimony was that many temporal lobectomy patients do not exhibit any such abnormalities. On this record, it cannot be held as a matter of constitutional law that petitioner lacked the cognitive, volitional or moral capacity to act with the degree of culpability generally associated with imposition of the death penalty. Rather, it was a question of fact whether petitioner was one of those people who suffered from a lack of emotional and volitional control after a temporal lobecto-my. That question was properly left to the jury. The jury was allowed to consider the evidence of petitioner’s brain condition, including the expert testimony from both sides. The jury was instructed that if it found that petitioner had a diminished capacity, he would be guilty only of manslaughter and not murder. 23 RT 126. The jury rejected petitioner’s diminished capacity defense, impliedly finding that petitioner was not sufficiently affected by the injury. Such a factual finding is given a presumption of correctness, rebuttable only by showing a defect in the fact-finding procedures. Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963); 28 U.S.C. § 2254(d). The jury considered the appropriate evidence and found against him. On the record in this case, there is no basis for disturbing the jury’s finding. This court cannot say that the result is contrary to constitutional law. Therefore, petitioner’s argument that his death sentence is unconstitutionally disproportionate to his personal blameworthiness must be rejected. Petitioner also argues that his execution would be contrary to the Eighth Amendment because it would serve no legitimate penological purpose. See Spaziano v. Florida, 468 U.S. 447, 460 n. 7, 104 S.Ct. 3154, 3162 n. 7, 82 L.Ed.2d 340 (1984). The state asserts that the death sentence here serves the same penological purposes as any death sentence — punishment and general deterrence. See generally Gregg v. Georgia, 428 U.S. 153, 181-84, 96 S.Ct. 2909, 2928-30, 49 L.Ed.2d 859 (1976). Petitioner’s argument is that his brain injury diminished his personal blameworthiness to the point where any retributive value to petitioner’s execution is insufficient. Cf. Tison, 481 U.S. at 148-49, 107 S.Ct. at 1683-84. The general deterrence value is also diminished, petitioner argues, because individuals with brain injuries such as his cannot be rationally deterred since they are not in control of their actions. Cf. Ford, 477 U.S. at 407, 106 S.Ct. at 2600. This argument is, however, answered by the same points as petitioner’s proportionality argument, above. It was a question of fact whether the causal relationship between petitioner’s brain injury and his crimes was such that his personal blameworthiness was diminished. The jury heard the evidence, including the expert testimony. The jury found against petitioner. That finding was supported by the evidence, and this court cannot say that the result was contrary to the constitution. For the reasons stated, petitioner’s claim that his death sentence violates the Eighth Amendment must be dismissed. VI. Petitioner argues that his right to a fair trial was violated by an improper jury instruction given during deliberations after a juror was substituted and after selection of a foreperson. When the issue of petitioner’s guilt was submitted to the jury, the jurors began deliberations immediately. They chose a foreperson and asked for the testimony of two witnesses. 23 RT 143-49. At the same time as the request for the testimony, one juror informed the trial judge that she was physically and psychologically uncomfortable in the jury deliberations. 23 RT 148-49. The court suggested that the jury reconvene the next day, with that juror being permitted to cause the deliberations to recess whenever she needed to leave the jury room for air. 29 RT 149. The next day, the juror informed the judge that the deliberations were aggravating a medical condition and that she was in considerable pain. 24 RT 1-2. The trial judge then dismissed her and replaced her with an alternate, a procedure to which both prosecution and defense agreed. 24 RT 1-2. The trial judge then gave the jury, including the new juror, the following instruction: I want to, ladies and gentlemen, impress upon the twelve jurors that have been deliberating, fortunately the deliberations have not gone too far at this point, but the Court is compelled under the law to admonish you that you are to start your deliberations from scratch because, obviously, Mrs. McHenry [the substituted alternate] has not had the benefit of whatever discussions you have had so far. So please do that as soon as you retire to the jury deliberation room. Start your discussions from scratch so that Mrs. McHenry has the full benefit of everything that has gone on between the jury up to the present time. At the present time we have the latest request. We have, which I think I placed on the record last evening, was, ‘Can we please hear the testimony from Deputy T. Johnson and Deputy Sutter in the morning.’ Signed by Miss Johanna Bil-lecci, [the elected foreperson], yesterday’s date of July 12th, 1983. Once again, Mrs. Billecci, we have prepared a copy of the transcript of the testimony of both the officers that you have requested. I am going to have the bailiff give you this as soon as you retire to the jury deliberation room. Normally what we do, we are facilitating the procedure a little bit. Normally we would be having the court reporter read back all the testimony. And that would be the entire testimony because that’s what you requested. So, Mrs. Billecci, I am instructing you to please read all of the testimony, that all the jurors should read all the testimony of both the officers which you requested. 24 RT 2-3. The twelve jurors, the eleven original jurors and the substituted alternate, retired to the deliberation room. 24 RT 3-4. Petitioner argues that the post-substitution instruction was erroneous and that he was prejudiced by the error. The state appears to admit that there was error in the trial judge’s language, but denies that there was any prejudice, and as a threshold matter, asserts that the issue is not of federal constitutional dimension. The California Supreme Court, in affirming petitioner’s conviction and sentence, assumed that there was error in the instruction but found no prejudice to petitioner. Odle, 45 Cal.3d at 405-06, 247 Cal.Rptr. 137, 754 P.2d 184. Federal habeas corpus is not available for attacks on violations of state law or procedure. A state prisoner can obtain federal habeas corpus relief only if he is held in violation of the Constitution, laws or treaties of the United States. Engle v. Isaac, 456 U.S. 107, 119, 120 n. 19, 121 n. 21, 102 S.Ct. 1558, 1567, 1567 n. 19, 1568 n. 21, 71 L.Ed.2d 783 (1982). Petitioner asserts that the Sixth Amendment’s guarantee of the right to a jury trial, applicable to the State of California through the Fourteenth Amendment, is violated in cases such as this if the verdict is not the product of the deliberations of all of the jurors. The cases involving the substitution of jurors during deliberations are less than clear on this argument. The cases tend to rely on applicable state laws governing substitution of jurors. See, e.g., United States v. Lamb, 529 F.2d 1153 (9th Cir.1976) (relying on Fed.R.Crim.P. 24(b), (c)); People v. Dry Land Marina, Inc., 175 Mich.App. 322, 437 N.W.2d 391 (1989) (Mich.Crim.R. 6.102(A)), app. denied, 433 Mich. 916 (1989), cert. denied, — U.S. -, 110 S.Ct. 2170, 109 L.Ed.2d 499 (1990); People v. Ford, 145 Misc.2d 308, 546 N.Y.S.2d 313 (Sup.Ct.1989) (N.Y. State Constitution); People v. Burnette, 775 P.2d 583 (Colo.1989) (Colo.R.Crim.P. 24(e)). It is arguable that many of these cases have impliedly recognized the constitutional nature of the issue. See, e.g., Ford, 546 N.Y.S.2d at 316 (“fair trial and due process”); Burnette, 775 P.2d at 586 (Sixth and Seventh Amendments); Lamb, 529 F.2d at 1159. In Miller v. Stagner, 151 F.2d 988, 995 (9th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1269, 89 L.Ed.2d 577 (1986), this issue was before the Ninth Circuit on federal habeas corpus. The court did not question the federal constitutional dimension of the claim. It considered the issue and, on the facts presented, found no violation of petitioner’s federal constitutional rights: The discharge and replacement of the jurors did not violate appellants’ federal constitutional rights. The California substitution procedure followed by the trial court preserved the ‘essential feature’ of the jury required by the Sixth and Fourteenth Amendments. Id. (footnote and citations omitted); see also Henderson v. Lane, 613 F.2d 175 (7th Cir.), cert. denied, 446 U.S. 986, 100 S.Ct. 2971, 64 L.Ed.2d 844 (1980). This court will assume that this claim is cognizable on federal habeas, because it implicates the guarantees of the Sixth and Fourteenth Amendments to the constitution, and will therefore consider the merits of petitioner’s claim. The post-substitution instruction given by the trial judge is claimed by petitioner to be erroneous. In California, an alternate juror may be substituted after deliberations have begun if a juror is found incapable of continuing to serve. Cal.Pen. Code § • 1089. The California Supreme Court has held that if substitution under section 1089 is made after deliberations have begun, the trial court must admonish the jury to begin its deliberations anew, disregarding all previous deliberations. People v. Collins, 17 Cal.3d 687, 693, 131 Cal.Rptr. 782, 552 P.2d 742 (1976), cert. denied, 429 U.S. 1077, 97 S.Ct. 820, 50 L.Ed.2d 796 (1977). The court stated: The requirement that 12 persons reach a unanimous verdict is not met unless those 12 reach their consensus through deliberations which are the common experience of all of them. It is not enough that twelve jurors reach a unanimous verdict if 1 juror has not had the benefit of the deliberations of the other 11. Deliberations provide the jury with the opportunity to review the evidence in light of the perception and memory of each member. Equally important in shaping a member’s viewpoint are the personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint. The result is a balance easily upset if a new juror enters the decision-making process after the 11 others have commenced deliberations. The elements of number and unanimity combine to form an essential element of unity in the verdict. By this we mean that a defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity. Collins, 17 Cal.3d at 693, 131 Cal.Rptr. 782, 552 P.2d 742. Courts in other jurisdictions have agreed that the only way to “cure” a substitution is to instruct the jury to begin its deliberations anew and disregard all that had gone before in the jury deliberations. E.g., United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Kopituk, 690 F.2d 1289 (11th Cir. 1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2089, 77 L.Ed.2d 300 (1983); United States v. Hillard, 701 F.2d 1052 (2d Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983); United States v. Barone, 83 F.R.D. 565 (S.D.Fla.1979). The constitutional question in this case is whether the “essential features” of the jury required by the Sixth and Fourteenth Amendments were preserved by the instructions of the trial court. Stagner, 757 F.2d at 995; Henderson, 613 F.2d at 177. The “essential features” of a jury were defined in Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1906, 26 L.Ed.2d 446 (1970) (cited with approval in Stagner) as: [T]he interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence. In this case, the trial judge instructed the eleven principal jurors to give the substituted juror the “full benefit of everything that has gone on between the jury up to the present time.” 24 RT 2. Additionally, the judge permitted the pre-substitution election of the foreperson to stand and accommodated the pre-substitution request for testimony. This would seem to contravene the requirement of instructing the jury to begin anew and to disregard all that had gone before. The California Supreme Court assumed that there was instructional error here, and analyzed its prejudicial effect on petitioner. See Odle, 45 Cal.3d at 405, 247 Cal.Rptr. 137, 754 P.2d 184. The federal constitutional analysis is somewhat different. It does not turn on whether there was error under state law or its resulting prejudice. The sole question is whether the essential features of the right to a trial by jury were preserved. In Stagner, two jurors were dismissed on the fifth day of deliberations. The judge then instructed the jury to “set aside and disregard earlier deliberations and to begin deliberations anew.” Stagner, 757 F.2d at 995. The Ninth Circuit held that this did not compromise the essential features of the right to trial by jury. Id. In Henderson, after two and one half hours of deliberations, a juror suffered a heart attack. An alternate juror — who admitted that he had discussed the case with his wife, but stated that his wife had expressed no opinion on the facts — was substituted, and a guilty verdict was reached within five hours. The case makes no mention of any instruction to disregard prior deliberations and to begin anew. Henderson, 613 F.2d at 176-77. The Seventh Circuit held that “the essential feature of the jury was preserved [and] the defendant’s Sixth Amendment challenge to the substitution procedure must fail.” Id. at 179. In the present case, the jury had met for only a portion of one afternoon. There is no indication that the jury did anything more than elect its foreperson and request the reading of some testimony. There is no evidence that the alternate juror had discussed the case with anyone prior to being substituted onto the jury. The jury deliberated for over two days after the substitution. And there is no indic