Unpublished Disposition, 855 F.2d 862 (9th Cir. 1982)

MEMORANDUM^** 

Petitioner David R. Roth, a California state prisoner, appeals pro se the denial of his habeas corpus petition. Roth was convicted of the second-degree murder of Willie McKinzie, and was sentenced to imprisonment for 15 years to life. On appeal, Roth contends that 1) there was insufficient evidence in the record to support the conviction, and 2) the trial court refused to give a jury instruction on the defense of diminished capacity. We affirm.

Roth first contends that there was insufficient evidence to support his second-degree murder conviction. In order to grant habeas relief based on insufficiency of the evidence, a court must find that, after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The essential elements for second-degree murder under California law are (1) an unlawful killing of a human being (2) with malice aforethought. Cal.Penal Code Secs. 187, 189 (West 1988). The California Penal Code defines "malice" as either "(1) a manifested and deliberate intention to take unlawfully the life of another, or (2) the taking of another's life without considerable provocation or when the circumstances surrounding the killing show an abandoned and malignant heart." Id. Sec. 188.

Jeffrey Blevins described in detail the circumstances surrounding the killing, both to police officers at the scene of the crime and at the time of trial. Blevins testified that Roth pursued and relentlessly attacked McKinzie although he was unable to defend himself. During his interrogation, Roth stated that he hit and kicked McKinzie "until he couldn't do it anymore," and that he pulled down McKinzie's pants and kicked him as hard as he could in the groin. In addition, several police witnesses testified that shortly after he was apprehended, Roth admitted to attacking McKenzie and showed no remorse for his actions. The police officers heard Roth say: "If I had my gun, I would have blown his brains out. I don't care if he's Green, Black, White or Mexican. Anybody hits me in the head, he is going to die ..." This evidence constituted a sufficient factual basis for Roth's conviction. Viewing the evidence in a light most favorable to the State, a rational juror could have found beyond a reasonable doubt that Roth acted with an abandoned and malignant heart and that he was not sufficiently provoked to reduce his crime to manslaughter. See Jackson, 443 U.S. at 319. Accordingly, the district court did not err by holding that there was sufficient evidence in the record to support Roth's conviction.

Roth also contends that the trial court violated his right to due process by refusing to instruct the jury on the defense of diminished capacity. This contention lacks merit because the California legislature abolished diminished capacity as a defense on January 1, 1982, four months before the killing of McKinzie. Cal.Penal Code Sec. 28(b) (1988).

For the foregoing reasons, the district court's judgment is affirmed.