- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Procedure
- Date Filed: 06-02-2015
- Case #: 12-99006
- Judge(s)/Court Below: Circuit Judge Tallman for the Court; Circuit Judges Bea and Owens
- Full Text Opinion
In 1981, Brett Pensinger met up with Vickie and Michael Melander, Sr. at a bar. During the course of that evening, a series of events unfolded that ended up with the Melanders’ children being kidnapped by Pensinger. The Melanders’ son was released, but their daughter was murdered, and her body was discovered a few days after the crime was committed. The young girl had been brutally tortured and there was some evidence to suggest that Pensinger sexually assaulted her. Pensinger was arrested in Texas and transferred to an Oregon prison for unrelated charges. During Pensinger's pre-trial confinement, more evidence came to light regarding the murder in California. Several jailhouse inmates testified against Pensinger, however during trial, Pensinger’s defense was that someone else had murdered the girl. During closing arguments, the State argued that Pensinger did not have murder in mind when he abducted the children. Pensinger was convicted of first degree murder and kidnapping, and sentenced to death by a jury. Pensinger filed a series of habeas petitions after his conviction, but the petitions were either dismissed or partially granted by the district court. On appeal, the Ninth Circuit reviewed whether the district court properly held that the trial court should have provided kidnap-murder special circumstance jury instructions, thus violating Pensinger’s constitutional rights. The panel noted that “a kidnap-murder special circumstance requires proof that the kidnapping was committed for an independent felonious purpose (i.e., not merely incidental to the murder).” The panel agreed with the district court that it was an error to not include the instruction. The panel found that the error was not harmless because the jury was not “‘properly instructed regarding all facets of the sentencing process.’” Pensinger also argued ineffectiveness of counsel, but the panel struck that argument down. AFFIRMED.