Ernest Dewayne Jones v. RONALD DAVIS , Warden

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNEST DEWAYNE J ONES ,
Petitioner-Appellee,
v.
RONALD D AVIS , Warden,
Respondent-Appellant.
No. 18-99003
D.C. No.
2:09-cv-02158-CJC
OPINION
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted April 20, 2021
Pasadena, California
Filed August 12, 2021
Before: Jay S. Bybee, Michelle T. Friedland, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge Friedland

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2 J ONES V . DAVIS
SUMMARY*
Habeas Corpus / Death Penalty
In a case in which Ernest Jones was convicted and
sentenced to death for the murder of his girlfriend’s mother,
the panel reversed the district court’s order granting relief on
one claim in Jones’s 28 U.S.C. § 2254 habeas corpus
petition, and remanded for the district court to consider
Jones’s remaining claims.
The district court granted relief on Jones’s claim that the
state trial court violated his right to present a complete
defense. Specifically, the district court held that Jones
should have been permitted to testify during the guilt phase
about events from his childhood and his mental health
history, and that the trial court had erred by conditioning
such testimony on the presentation of a psychiatric expert
who would explain the testimony’s relevance to Jones’s
mental state during the murder.
Reviewing de novo, the panel held that the condition the
trial court imposed on Jones’s testimony was neither
arbitrary nor disproportionate to the valid purposes served
by its ruling.
COUNSEL
Herbert S. Tetef (argued) and A. Scott Hayward, Deputy
Attorneys General; James William Bilderback II,
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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J ONES V . DAVIS 3
Supervising Deputy Attorney General; Lance E. Winters,
Senior Assistant Attorney General; Gerald A. Engler, Chief
Assistant Attorney General; Rob Bonta, Attorney General of
California; Office of the Attorney General, Los Angeles,
California; for Respondent-Appellant.
Nisha K. Shah (argued) and Cliona Plunkett, Habeas Corpus
Resource Center, San Francisco, California, for Petitioner-
Appellee.
OPINION
FRIEDLAND, Circuit Judge:
In 1995, Ernest Jones was convicted and sentenced to
death for the murder of his girlfriend’s mother. After the
California Supreme Court affirmed his conviction and
sentence and denied his state habeas petition, Jones filed a
federal habeas petition, raising multiple challenges to both
the guilt and penalty phases of his trial. The district court
granted relief on Jones’s claim that the state trial court
violated his right to present a complete defense.
Specifically, the district court held that Jones should have
been permitted to testify during the guilt phase about events
from his childhood and his mental health history, and that
the trial court had erred by conditioning such testimony on
the presentation of a psychiatric expert who would explain
the testimony’s relevance to Jones’s mental state during the
murder. Reviewing de novo, we hold that the condition the
trial court imposed on Jones’s testimony was neither
arbitrary nor disproportionate to the valid purposes served
by its ruling. Accordingly, we reverse and remand for the
district court to consider Jones’s remaining claims.

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4 J ONES V . DAVIS
I.
A.
Shortly after midnight on August 25, 1992, Chester
Miller returned home from work and noticed that his and his
wife’s car was missing from their driveway.1 He entered the
house and found his wife, Julia Miller, dead on the floor of
their bedroom.2 Miller was gagged, bound by her arms and
legs, and naked from the waist down. She had sustained at
least sixteen stab wounds. The fatal wound was a stab to her
chest that perforated her aorta. Medical examiners later
found semen in Miller’s body that matched Jones’s DNA.
According to the examiners, the semen had entered her body
within five to ten hours of her death.
At around 1:00 a.m., Miller’s daughter, Pam, heard the
doorbell of her apartment ring. Her grandparents had come
to inform her of her mother’s death. Pam asked Jones, with
whom she lived, to accompany her to her grandparents’
house; Jones told her that he would join her if he could get
his sister’s car. Pam then called her friend Shamaine, who
lived near Pam’s parents’ house. Shamaine told Pam over
the phone that Jones had come to her house earlier that
evening to exchange jewelry for drugs. She urged Pam to
come look at that jewelry. Pam did so and immediately
recognized the jewelry as Miller’s. She realized then that
Jones had killed her mother.
1 We provide the facts as presented at trial, drawing from the trial
and state habeas records.
2 For clarity, we refer to Julia Miller by her last name and to her
daughter, Pam Miller, by her first name. We also refer to certain
witnesses by their first names to protect their privacy.

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J ONES V . DAVIS 5
Pam returned with several police officers to her and
Jones’s apartment to find it empty and the front and back
doors barricaded with furniture. Officers later discovered
Miller’s station wagon parked near the apartment and began
surveilling it. Sometime between 3:00 and 3:30 a.m., the
officers saw Jones get into the car and drive off. The officers
followed him; a few minutes into the drive, Jones pulled a
rifle from the back seat of the car to the front seat and began
speeding. A forty-minute pursuit ensued, during which
Jones ignored red lights, ran stop signs, and blew out his left
tires. Eventually, the car became totally disabled and came
to a stop. Officers approached Jones and ordered him to exit
the car, but he remained inside and shot himself in the chest
with the rifle. Jones was hospitalized but survived.
B.
1.
Jones was tried on charges of first-degree murder, rape,
robbery, and burglary. The State’s theory at trial was that
Jones had deliberately raped and killed Miller; stolen her
jewelry, rifle, and car; and exchanged her jewelry for drugs
after the murder. The State also sought to prove the special
circumstance that Jones murdered Miller “in the commission
of” a rape, robbery, or burglary—meaning that he murdered
her while committing or attempting to commit one or more
of those crimes, and that he murdered her to “carry out or
advance the commission of” such a crime, to “facilitate the
escape” from such a crime, or to “avoid detection” for such
a crime. Only if the jury found true this special circumstance
would Jones be eligible for the death penalty. Cal. Penal
Code § 190.2(a)(17)(A), (C), (G). Jones did not deny that he
raped and murdered Miller; he asserted only that he lacked
the specific intent to do so because he blacked out right
before those crimes.

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6 J ONES V . DAVIS
To help prove Jones’s intent, the State introduced
evidence of a similar past crime. In 1985, Jones had raped a
woman named Doretha, who was the mother of Jones’s ex-
girlfriend, Glynnis. At the Miller murder trial, Doretha
testified that Jones had broken into her home, tied her up,
and raped and sodomized her. She recounted how, after
Jones’s assault ended, he lay down on her bed and rested
while she was still restrained. Sometime later, while still at
Doretha’s house, Jones had an emotional reaction to a
photograph of himself with Glynnis and their infant son. He
told Doretha he would allow her to live for his son’s sake;
then, he pointed a knife to his stomach and asked Doretha to
kill him instead. Doretha refused, and Jones left her tied to
the bed after taking money from her purse.
Jones testified in his own defense during the guilt phase
of the Miller murder trial. On the stand, Jones admitted that
everything Doretha had previously testified to was true, even
if he could not remember all the events she described. He
explained that he had been angry at Glynnis for breaking off
their relationship, and that he had been looking for Glynnis
when he broke into Doretha’s home, but then “directed [his]
anger at” Doretha.
Jones also recounted his version of the events
surrounding Miller’s murder. Jones testified that, on the day
in question, he had turned to drugs for the first time since
getting out of prison because he learned that Pam was having
an affair. He purchased rock cocaine and marijuana from
Shamaine that afternoon, paying in cash. After smoking,
Jones became “very high” and “very paranoid.” He stated
that when Pam came home that evening, she gave Jones
some jewelry to exchange for more drugs. Jones testified
that, at the time, he did not recognize the jewelry as
belonging to Miller. Jones bought a second batch of drugs

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J ONES V . DAVIS 7
from Shamaine with the jewelry around 7:30 p.m. He
became nervous about being approached by police while
waiting for the bus home, so he decided to walk to Miller’s
house to ask for a ride.
Miller let him in. Although their interaction started
cordially, she soon asked Jones how he had broken his
thumb, which was in a cast. Jones admitted that he had
injured it while grabbing Pam during an argument. Miller
immediately became angry and took a knife out of a kitchen
drawer. Jones grabbed another knife in response and the two
began to physically fight. Miller ran to her bedroom and
retrieved a rifle, but Jones knocked her down and she
dropped it. As Jones was standing over Miller, she said,
“Give it to me.”
It was at this moment that Jones “slipped back into [his]
childhood.” Jones testified:
In my mind, I was visioning when I was little,
when I walked into a room with my mother
who was with another man that wasn’t my
father, and I bent down, grabbed the knife off
the floor, and I remember grabbing a rag or a
cloth or something, and I picked up the knife
and I started to stab [Miller].
Jones testified that the next thing he remembered was
“being curled up in a ball crying, and [he] looked over at
Ms. Miller and she was lying there tied up and she was
dead.” Realizing what he had done, Jones took a second rifle
that was in the bedroom and left in Miller’s car, intending to
commit suicide. As he left, he started hearing voices saying,
“They’re going to kill you.” Jones asserted that he had had
no intention of harming Miller when he entered her house.

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8 J ONES V . DAVIS
Jones testified that he continued to experience paranoia
and hear voices on the way home. When Pam left with her
grandparents later that night, Jones barricaded himself in the
apartment. Sometime between 3:00 and 3:30 a.m., he left
the apartment, taking Miller’s car and planning to drive off
a nearby cliff. He saw police pursuing him and again heard
voices saying, “They’re going to kill you.” The chase ended
when the car became disabled. Continuing to hear the
voices, he shot himself in the chest with the Millers’ rifle as
the officers approached.
2.
During the guilt phase of the trial, defense counsel
repeatedly sought to introduce evidence of Jones’s traumatic
childhood and prior mental health symptoms—specifically,
his history of hearing voices, blacking out, and experiencing
flashbacks.
The issue first arose when defense counsel asked Jones,
while he was on the stand, whether he had received
psychiatric treatment while in prison for the crimes against
Doretha. The prosecution objected, arguing at a subsequent
sidebar hearing that such testimony had no bearing on
Jones’s specific intent to rape and murder Miller years later
absent a psychiatrist explaining its relevance or offering a
diagnosis. Defense counsel countered that Jones was
competent to testify without an expert about his own
symptoms and treatment history as long as that testimony
fell short of a diagnosis, and that Jones’s lack of treatment
would help explain his crimes as triggered by unaddressed
mental health problems. He also noted his intention to ask
Jones “about his background . . . his family problems, [and]
the past times when he heard voices.”

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J ONES V . DAVIS 9
The trial court precluded Jones from testifying about his
childhood or past treatment history without expert
psychiatric testimony accompanying it. The court did,
however, allow: (1) testimony that Jones was currently
taking medication that “ma[d]e him feel better,” to explain
his demeanor on the stand; and (2) testimony that Jones had
been attending counseling in the months leading up to the
Miller murder in 1992. Accordingly, the jury heard that
Jones was receiving medication in jail, which a jail physician
later identified as anti-depressive and anti-psychotic
medications, and that Jones had met with a psychiatrist in
1992 on the orders of his parole officer, a process that Jones
described as simply “going through the motions.”
Defense counsel revisited the court’s evidentiary ruling
during a break in Jones’s cross-examination. Noting that
state jury instructions did not prohibit the jury from
considering evidence of mental disease without expert
testimony, counsel offered a detailed proffer of the
testimony he hoped to elicit from Jones about his abusive
childhood; his family history of mental health issues; his
witnessing his mother’s infidelity; his past “dizzy spells,
black outs, [and] hearing voices”; and other events that “all
led to the explosion” on the night of the murder.3 In
3 Counsel’s full proffer was as follows:
The problems at school. He was in special education.
Attended many schools. . . .
Drug use; marijuana at 15, alcohol at 15; cocaine about
25 times; some evidence of LSD; family history of
mental disease; Aunt Jackie shot herself to death;
grandfather had delusions, ran down the street with a

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10 J ONES V . DAVIS
response, the prosecution again contended that the jury
would be unable to understand the relevance of such
testimony to Jones’s lack of specific intent without “a
psychiatrist taking all these symptoms and linking them
together and giving us a diagnosis.” The prosecution
observed that the court had appointed an expert psychiatrist
for this very purpose, who had already written a report on
Jones’s mental state and who was available to testify for the
defense. The trial court asked defense counsel if he intended
to call an expert psychiatrist. When counsel answered that
it was not his “present intention” to do so and that he
gun; and a cousin and a son on Ritalin for A.D.D.,
attention deficit disorder.
No food; no electricity many times because the family
was spending the money on alcohol; both parents were
alcoholics; a series of beatings with extension cords;
brother who was killed, and the defendant saw the
brother in the street; a mother who was promiscuous.
And I believe the defendant already testified to, when
he was about seven or eight, opening the door and
seeing [his mother] in bed with another man.
Other incidents of other men, dizzy spells, black outs,
hearing voices, screaming at night—this is all the
defendant—and also being told by his mother that she
did not believe that his father—his father was not
really his father.
Also the fact that he was afraid to discuss his problems
with others because he felt cut off already, and he felt
that this would make him more cut off.
And then the incidents which even the D.A. wants to
get into, the incidents with both Glynnis and Pam, and
particularly Pam’s mother; the drug use which all led
to the explosion.

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J ONES V . DAVIS 11
“want[ed] to see the rest of Mr. Jones’ testimony” before
deciding, the court again precluded Jones from testifying
about his childhood and past symptoms and denied defense
counsel’s motion for a mistrial on this basis.
The issue arose a third time in the wake of a question the
prosecution had asked Jones during cross-examination:
whether he had been “trying to kill [his] mother” when he
murdered Miller. Jones had responded only that he did not
“remember much.” On redirect, defense counsel asked
Jones about his relationship with his mother in an effort to
ameliorate the impact of that question. After the trial court
sustained the prosecution’s objection, defense counsel
argued once more that the court’s earlier ruling was
preventing Jones from establishing his credibility in the face
of the prosecution’s “disbelieving” and “dramatic”
questioning. Unpersuaded, the court reaffirmed its ruling
and denied counsel’s second motion for a mistrial.
In his closing argument, the prosecution highlighted the
dearth of evidence supporting Jones’s defense that he lacked
specific intent, asking the jury, “What evidence is there here
of a mental disorder other than the defendant saying I flashed
back to my childhood?” and positing that Jones “only blacks
out the times that . . . he has no other explanation for.”
Defense counsel renewed his motion for a mistrial based on
these statements, which the trial court again denied. The
court did, however, instruct the jury that it could consider
evidence regarding “a mental disorder . . . for the purpose of
determining whether [Jones] actually formed the required
specific intent.”

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12 J ONES V . DAVIS
After deliberating for several days, the jury found Jones
guilty of first-degree murder4 and rape. It also found true
the special circumstance that the murder was committed in
the commission of a rape, making Jones eligible for the death
penalty. Cal. Penal Code § 190.2(a)(17)(C). The jury
acquitted Jones of the robbery and burglary charges.
C.
Although Jones was prevented from testifying about his
childhood and past mental health symptoms during the guilt
phase, other witnesses offered testimony on those subjects
during the penalty phase. Jones’s childhood was, according
to his aunt, “a living hell.” Multiple family members
testified that Jones’s parents drank heavily, were physically
abusive to each other and their children, and sometimes left
Jones and his siblings hungry. According to Jones’s aunt,
Jones had once asked about the possibility of his father not
being his biological father; he also suffered from screaming
nightmares but would become withdrawn when asked about
them. Jones’s sister testified that their brother was murdered
when Jones was younger and that Jones had witnessed his
body lying in the street afterwards—an experience after
which Jones “was not the same person.” And Jones’s father
recounted that he arrived home one night to find his wife in
bed with another man and a young Jones awake in the bed.
A family friend named Kim also appeared as a
prosecution witness during the penalty phase. She testified
4 The verdict did not specify on which theory the jury found Jones
guilty of first-degree murder: that the murder was committed with “the
specific intent to kill which is premeditated and deliberate”; or that it was
committed with “the specific intent to commit” rape (i.e., felony
murder). See People v. Jones, 64 P.3d 762, 779 (Cal. 2003) (discussing
the two possible theories underlying the murder verdict).

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J ONES V . DAVIS 13
that in 1984—when Jones was about twenty and she was
about twenty-three—he had raped her after they left a party
together. But during the rape, she recounted, Jones seemed
to take “on a new person, like he was in a trance, and then
afterwards, he seemed to snap back.” Jones was, in that
moment, “an entirely different person than the person [she]
knew.” Kim successfully requested that the charges against
Jones be dropped after the incident, but she asked for Jones
to receive psychiatric treatment because she thought he
needed help.
Jones’s court-appointed expert psychiatrist,
Dr. Claudewell Thomas, was the final penalty-phase
witness. Based on previous physicians’ reports on Jones and
his own interviews of Jones, Dr. Thomas diagnosed Jones
with schizoaffective schizophrenia: a disorder
“characterized by psychotic responses” that could occur in
“an intermittent and unpredictable pattern” in which “an
individual’s customary reality-oriented judgment is
disrupted.” According to Dr. Thomas, when Jones
experienced “high emotionality” such as “rage,” he
underwent “an altered state of personality” and lost “the
ability to control the normal functioning self.” When Jones
lost that control, Dr. Thomas continued, he entered an “inner
reality” of the world “when he was growing up and subjected
to the sadistic punishment of a domineering and
promiscuous and alcoholic mother.” Dr. Thomas opined that
Jones’s “destructive” childhood—including witnessing his
mother’s affair—contributed to the development of his
disorder.
Based on this diagnosis, Dr. Thomas concluded that
Jones had dissociated before raping Kim, Doretha, and
Miller. The true object of Jones’s assaults on Doretha and
Miller, Dr. Thomas further opined, was Jones’s mother.

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14 J ONES V . DAVIS
Jones’s account that he heard voices immediately after the
Miller murder was another indication that his schizophrenia
had influenced his thoughts and behavior.
The jury fixed the penalty at death. Defense counsel
moved for a new trial, based in part on the trial court’s earlier
rulings limiting Jones’s testimony. The court denied the
motion, explaining that it had allowed Jones to testify freely
about “what he was thinking or feeling or sensing at the time
of the incident,” but that counsel’s proffer had provided “no
nexus . . . to show the relevance of [the evidence] in the guilt
phase.” The court also expressed its view that counsel’s
decision not to call Dr. Thomas at the guilt phase was “a
tactical decision,” and one that the court understood after
hearing Dr. Thomas’s penalty-phase testimony. Jones was
sentenced to death on April 7, 1995.
D.
On direct appeal before the California Supreme Court,
Jones argued, as relevant here, that the trial court violated his
right to present a complete defense by barring him from
testifying about his “extensive history of hearing voices,
flashbacks, and blackouts.” Specifically, he contended that
the trial court’s ruling ran afoul of the constitutional
requirement, established in Rock v. Arkansas, 483 U.S. 44
(1987), that restrictions on a criminal defendant’s right to
testify may not be arbitrary or disproportionate to the
purposes those restrictions are meant to serve, id. at 55–56.
Jones explained that the excluded testimony was “relevant
to his ability or inability to form the specific intent to rape”
and to the credibility of his admitted testimony that he
flashed back and blacked out right before murdering Miller.
The California Supreme Court rejected this argument
and affirmed Jones’s conviction and sentence. People v.

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J ONES V . DAVIS 15
Jones, 64 P.3d 762, 777, 787 (Cal. 2003). Observing that
Jones had testified that he heard voices only after raping and
murdering Miller, the court held that “any prior history of
hearing voices would not have been relevant” to his specific
intent to rape her. Id. at 777. The court accordingly held
that “[t]here was no error” in the trial court’s rulings on the
issue. Id. There was no mention of Jones’s proposed
testimony regarding flashbacks and blackouts, or of whether
that evidence would have been relevant to Jones’s intent.
The court also concluded that any error was harmless
because Dr. Thomas had not mentioned Jones’s history of
flashbacks and blackouts in his penalty phase testimony—an
omission that the court took to suggest that any such
testimony by Jones would have been a “recent fabrication.”
Id.
The United States Supreme Court denied certiorari.
Jones v. California, 540 U.S. 952 (2003). The California
Supreme Court denied Jones’s state habeas petition in 2009.
Order, In re Jones, No. S110791 (Cal. Mar. 16, 2009).
Jones then filed a habeas petition in federal district court
in which he, inter alia, challenged the exclusion of testimony
about his childhood and mental health history. The district
court granted habeas relief on one of Jones’s other claims,
but that ruling was reversed on appeal by our court.5
Following our remand, the district court then granted relief
on Jones’s Rock claim. Observing that “Jones’s testimony
5 The district court had granted relief on Jones’s claim that
California’s post-conviction review process creates such a delay between
sentencing and execution that any executions that do occur are arbitrary
in violation of the Eighth Amendment. We reversed on the ground that
Jones’s claim was barred by Teague v. Lane, 489 U.S. 288 (1989),
because it sought the benefit of a new constitutional rule. Jones v. Davis,
806 F.3d 538, 541 (9th Cir. 2015).

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16 J ONES V . DAVIS
about his mental state was material, because his defense was
that he lacked the intent to murder or rape Ms. Miller as a
result of his mental disorder,” the district court concluded
that Jones’s right to testify in his own defense had been
violated and that the California Supreme Court’s decision to
the contrary was an objectively unreasonable application of
Rock under 28 U.S.C. § 2254(d)(1).6 The district court
ordered that Jones either be released or granted a new trial.
The State timely appealed.
II.
We review the district court’s grant of habeas relief de
novo. Moses v. Payne, 555 F.3d 742, 750 (9th Cir. 2009).
Because Jones’s federal habeas petition was filed after April
24, 1996, it is governed by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d).
AEDPA precludes habeas relief on a claim that was
adjudicated on the merits in state court unless the court’s
denial of the claim “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 “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.” Id. But we need not resolve whether
AEDPA’s standards are satisfied if a petitioner’s underlying
6 The court denied another of Jones’s claims, which challenged the
sufficiency of the evidence underlying the jury’s rape-related findings,
as procedurally barred. Jones did not appeal this decision.

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J ONES V . DAVIS 17
constitutional claim fails even on de novo review. See Fox
v. Johnson, 832 F.3d 978, 986 (9th Cir. 2016).7
III.
We do not consider AEDPA’s requirements here
because Jones’s constitutional claim fails on de novo
review.8
A.
“Whether rooted directly in the Due Process Clause of
the Fourteenth Amendment, or in the Compulsory Process
or Confrontation clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.” Crane v.
Kentucky, 476 U.S. 683, 690 (1986) (citations and quotation
7 The parties agree that the California Supreme Court’s denial of
Jones’s claim constituted an adjudication on the merits within the
meaning of § 2254(d).
8 After argument, we directed the parties to submit supplemental
briefs discussing whether Jones’s claim seeks the benefit of a new
constitutional rule and is thus barred by Teague v. Lane, 489 U.S. 288
(1989). In his supplemental brief, Jones argues that the State failed to
adequately raise Teague as an affirmative defense either in the district
court or on appeal. See Arredondo v. Ortiz, 365 F.3d 778, 781–82 (9th
Cir. 2004). We agree with Jones that the State failed to raise and preserve
its Teague defense, and we therefore decline to address it sua sponte. See
Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (holding that a court “may
. . . decline to apply Teague” when the state has not argued it); Pensinger
v. Chappell, 787 F.3d 1014, 1024 (9th Cir. 2015) (declining to consider
Teague sua sponte where, as here, the state “did not mention the defense”
when responding to the relevant claim in its answer to the habeas petition
before the district court, “even though it argued Teague as to several
other claims in its answer,” and where, as here, the state’s appellate brief
failed to adequately argue Teague).

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18 J ONES V . DAVIS
marks omitted). This guarantee includes, “at a minimum,
. . . the right to put before a jury evidence that might
influence the determination of guilt.” Pennsylvania v.
Ritchie, 480 U.S. 39, 56 (1987). In many criminal cases, the
“most important witness for the defense” in that
determination of guilt “is the defendant himself.” Rock v.
Arkansas, 483 U.S. 44, 52 (1987).
Recognizing the critical role of a criminal defendant’s
own testimony, the Supreme Court held decades ago that
“restrictions of a defendant’s right to testify may not be
arbitrary or disproportionate to the purposes they are
designed to serve.” Id. at 55–56. The Court has since
explained that a defendant’s right to present a complete
defense is abridged by any restrictions on defense evidence
that are “arbitrary or disproportionate” and that infringe on
the defendant’s “weighty interest.” Holmes v. South
Carolina, 547 U.S. 319, 324 (2006) (quoting United States
v. Scheffer, 523 U.S. 303, 308 (1998)).
Under this framework, the restriction of a defendant’s
evidence pursuant to an evidentiary rule is arbitrary when
applying the rule serves no legitimate purpose in the case at
hand. For example, the Supreme Court has invalidated
convictions resulting from trials that excluded evidence
pursuant to “rules that . . . did not serve any legitimate
interests.” Id. at 325; see also, e.g., Holmes, 547 U.S. at 331
(holding that a rule that categorically barred evidence of
third-party guilt when strong forensic evidence of the
defendant’s guilt was presented “is arbitrary in the sense that
it does not rationally serve the end that . . . [it was] designed
to further” (quotation marks omitted)); Rock, 483 U.S. at 61
(holding that a rule that categorically barred all hypnotically
refreshed testimony “is an arbitrary restriction . . . in the
absence of clear evidence by the State repudiating the

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J ONES V . DAVIS 19
validity of all posthypnosis recollections”); Washington v.
Texas, 388 U.S. 14, 22 (1967) (holding that a statute that
categorically barred accomplices from testifying for a
defendant on trial for the same crime “cannot . . . be
defended”). Exclusions of defense evidence may be
arbitrary even when, “under other circumstances, [the rule]
might serve some valid state purpose.” Chambers v.
Mississippi, 410 U.S. 284, 300 (1973) (holding that the
application of the rule against hearsay to exclude
exculpatory testimony violated the defendant’s right to
present a complete defense because the testimony was
reliable). And application of an evidentiary rule to preclude
defense evidence, even when doing so “legitimately
serve[s]” a “state’s interest” in the case at hand, is
disproportionate when it infringes excessively on a
defendant’s right to “tell his own story.” Greene v. Lambert,
288 F.3d 1081, 1091 (9th Cir. 2002) (holding that the
exclusion of all mention of the defendant’s dissociative
identity disorder violated Rock, notwithstanding the
legitimate goal of ensuring reliable testimony).
That said, an individual’s right to present a defense,
either through his own testimony or through other evidence,
is not without limit. “The accused does not have an
unfettered right to offer testimony that is . . . inadmissible
under standard rules of evidence.” Taylor v. Illinois,
484 U.S. 400, 410 (1988). A trial court therefore may,
consistent with the Constitution, exclude defense evidence
through the proper application of evidentiary rules that serve
a valid purpose in a given case, including when proposed
evidence is “only marginally relevant or poses an undue risk
of harassment, prejudice, or confusion of the issues.”
Holmes, 547 U.S. at 326–27 (alteration omitted) (quoting
Crane, 476 U.S. at 689–90); cf. Perry v. Rushen, 713 F.2d
1447, 1453–54 (9th Cir. 1983) (“[T]here clearly is some

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20 J ONES V . DAVIS
point at which evidence may be so lacking in probity and so
productive of confusion that it may constitutionally be
excluded.”).
B.
Jones’s right to present a complete defense was not
violated because the trial court’s evidentiary ruling was
neither arbitrary nor disproportionate to the purpose that it
served. The court explained its decision as “a matter of
relevance”: it concluded that expert contextualization was
needed to provide a “nexus” between the events in Jones’s
past and his specific intent during the crimes. Ensuring that
the jury would have understood the relevance of Jones’s
testimony and that Jones’s testimony would not have
confused the issues at trial was a proper and proportionate
application of the standard rules of evidence to which the
right to testify is always subject. See Taylor, 484 U.S.
at 410; Holmes, 547 U.S. at 326; cf., e.g., Cal. Evid. Code
§ 210 (defining relevant evidence); id. § 350 (providing that
only relevant evidence is admissible); id. § 352 (“The court
in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its
admission will . . . create substantial danger of . . . confusing
the issues, or of misleading the jury.”).
As a threshold matter, the trial court’s challenged ruling
is better described as imposing a condition than an absolute
restriction. The record is clear that, had defense counsel
planned to call an expert psychiatrist, the court would have
permitted Jones to testify about his childhood and mental
health history. We have previously considered the
constitutionality of a condition on the admission of defense
evidence in Menendez v. Terhune, 422 F.3d 1012 (9th Cir.
2005). There, the trial court prevented defendants who were
on trial for murdering their parents from introducing third-

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J ONES V . DAVIS 21
party testimony “that could explain why they feared their
parents” without “first . . . lay[ing] a foundation” for that
testimony by personally testifying “about their actual belief
of imminent danger.” Id. at 1030. We held that the state
reviewing court acted reasonably in concluding that this
condition did not violate the defendants’ due process rights.
Id. at 1031–32. Menendez did not hold, nor do we hold here,
that a condition on the admission of defense evidence is
immune from constitutional scrutiny. Still, the conditional
nature of a ruling will often be relevant to whether it is
arbitrary or disproportionate.
The trial court’s condition on Jones’s testimony was not
arbitrary. Whether and how Jones’s traumatic childhood and
mental health history affected his ability to form specific
intent years later were complicated questions. Counsel
characterized the proposed testimony, which would have
spanned the entirety of Jones’s life, as describing a series of
events that “all led to the explosion” culminating in Miller’s
murder. But at no point did counsel explain how Jones alone
would have been able to draw that causal link for the jury.
Nor would such a link necessarily have been apparent. The
trial court therefore reasonably concluded that the relevance
of Jones’s proposed testimony required expert
contextualization. Cf. Smith v. McCormick, 914 F.2d 1153,
1157 (9th Cir. 1990) (describing the expert’s role in
“understanding . . . the defendant’s mental history, and
explain[ing] to the jury how” such history is “relevant to the
defendant’s mental condition” (quoting United States v.
Fazzini, 871 F.2d 635, 637 (7th Cir. 1989))); Caro v.
Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999) (“The jury
did not, however, have the benefit of expert testimony to
explain the ramifications of [childhood injuries and chemical
exposure] on [the defendant’s] behavior. Expert evidence is

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22 J ONES V . DAVIS
necessary on such issues when lay people are unable to make
a reasoned judgment alone.”).
Nor was the trial court’s condition disproportionate.
Rather, it “was a measured means to serve an important
purpose.” Williams v. Borg, 139 F.3d 737, 740 (9th Cir.
1998). Unlike in Rock, there were no less drastic and “more
traditional means” available to explain to the jury the
relevance of Jones’s proposed testimony. Rock, 483 U.S. at
61 (discussing the alternative option of cross-examination to
ensure reliability). And the court imposed its condition only
on evidence whose relevance it reasonably worried would
not have been apparent without expert testimony. By
contrast, the court admitted those parts of Jones’s testimony
that were clearly independently relevant, such as what Jones
was thinking and feeling on the day of the murder, including
the substantive content of his childhood flashback right
before the crime. Accordingly, any impact of the court’s
ruling on Jones’s right to tell his complete story was
proportionate to the evidentiary purposes served here. Cf.
Greene, 288 F.3d at 1091.9
We also place significant weight on the fact that the
condition the court imposed was not onerous: an expert
psychiatrist had already been appointed, had written a report,
and was available to testify on Jones’s behalf. Cf. Williams,
139 F.3d at 741 (observing that the defendant “had complete
9 Jones also contends that telling the jurors that he previously
experienced flashbacks, blackouts, and hearing voices would have made
them more likely to believe his account that he blacked out right before
murdering Miller. But even if so, it was reasonable for the court to
conclude that the weak probative value of such testimony was
outweighed by the risk of confusing the jury about which questions it
had to answer to determine whether Jones had formed the requisite
specific intent.

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J ONES V . DAVIS 23
control over whether he could testify or not,” because he
could choose whether to satisfy the condition of submitting
to cross-examination). That Jones may have been compelled
to make a difficult tactical decision about whether
introducing Dr. Thomas at the guilt phase was worth the risk
of prejudicial cross-examination does not mean that the
consequences of the court’s condition were disproportionate
to the interests it served. The “Constitution does not forbid
every government-imposed choice in the criminal process
that has the effect of discouraging the exercise of
constitutional rights.” Portuondo v. Agard, 529 U.S. 61, 70
(2000) (quoting Jenkins v. Anderson, 447 U.S. 231, 236
(1980)).
Jones’s arguments to the contrary do not persuade us.
First, Jones argues that the trial court’s ruling was arbitrary
because California law allows lay testimony about mental
health conditions without accompanying expert testimony,
and that therefore, the restriction served no legitimate
interests. See, e.g., People v. DeSantis, 831 P.2d 1210, 1228
(Cal. 1992) (“[T]here is no logical reason why qualified lay
witnesses cannot give an opinion as to mental condition less
than sanity or to similar cognitive difficulties.” (citation and
quotation marks omitted)). A state rule that lay witnesses
are competent to offer mental health opinions, however, does
not dictate that any lay testimony about mental health will
be admissible notwithstanding other evidentiary rules. Cf.
United States v. Vallejo, 237 F.3d 1008, 1015 (9th Cir. 2001)
(“The particular facts of the case determine the relevancy of
a piece of evidence.”). To illustrate this point, the properly
admitted testimony in one case Jones cites, People v.
Townsel, 368 P.3d 569 (Cal. 2016), consisted of lay opinions
that a defendant was not intellectually disabled, which were
offered to rebut the defense that intellectual disability
prevented the defendant from forming specific intent. Id.

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24 J ONES V . DAVIS
at 589–91. Unlike Jones’s proffer, the relevance of this
testimony was apparent without additional evidence. See id.
The state law principles Jones invokes do not prove that the
trial court’s ruling here—which was premised on a missing
link between Jones’s mental health history and his specific
intent, rather than on Jones’s competence to testify about that
mental health history—was arbitrary. Indeed, state law
supports the trial court’s weighing the value of Jones’s
unaccompanied testimony against the risks of confusion it
posed. See Cal. Evid. Code § 352.
Second, Jones’s reliance on our opinion in Greene is
misplaced. The defendant in Greene sexually assaulted his
therapist. 288 F.3d at 1084–85. At trial, he contended that
he suffered from dissociative identity disorder (“DID”) and
that an alternate personality was in control of his body during
the assault. Id. The trial court barred “any mention of” DID,
precluding expert testimony, witness testimony, and the
defendant’s own testimony. Id. at 1085. On habeas review,
we relied on Rock to hold that this broad exclusion
“impermissibly curtailed [Greene’s] right to . . . describe his
state of mind at the time of the attack.” Id. at 1091. We
reached this conclusion notwithstanding the fact that the
court’s preclusion “legitimately serve[d]” the “state’s
interest in preventing unreliable or confusing scientific
testimony.” Id.
Greene is distinguishable because the type of evidence
excluded there—the defendant’s description of “his own
state of mind at the time of the attack,” id. at 1092—was
admitted here. Jones testified that right before the murder,
he flashed back to a moment from his childhood and blacked
out shortly after. Moreover, the trial court did not condition
Greene’s DID testimony on the introduction of an expert;

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J ONES V . DAVIS 25
rather, it flatly excluded all DID evidence, including that
offered by his expert. Id. at 1085.
Indeed, in Greene, we anticipated evidentiary rulings
like the one Jones challenges here, observing that our
holding “may have the consequence of requiring expert
testimony to provide context for the finder of fact.” Id.
at 1093. This statement strongly suggests that it is
constitutional to require expert testimony to accompany lay
testimony about mental health symptoms that is offered to
disprove specific intent. Jones attempts to explain away this
statement as stemming from the fact that the trial in Greene
took place in Washington, which, unlike California, has a
rule mandating expert testimony whenever scientific
evidence is admitted. But whether a particular evidentiary
ruling is dictated by state law has little bearing on whether it
would comport with federal constitutional law. See Jammal
v. Van de Kamp, 926 F.2d 918, 919–20 (9th Cir. 1991). Our
suggestion in Greene that such a requirement would be
constitutional under Rock thus supports the State’s position
here regardless of variations in state law.
Ultimately, what Jones challenges is a reasonable and
measured determination that, without expert
contextualization, his proffered testimony about past events
and experiences would not assist the jury in determining his
specific intent during an incident that occurred years later.
This fact-specific ruling appropriately served valid rules of
evidence and was not disproportionate to the purposes
served by those rules. It was thus not unconstitutional.
IV.
For the foregoing reasons, we reverse the judgment of
the district court and remand for consideration of Jones’s
remaining claims.

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26 J ONES V . DAVIS
REVERSED AND REMANDED.

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