Unpublished Disposition, 855 F.2d 862 (9th Cir. 1988)

No. 87-2814.

United States Court of Appeals, Ninth Circuit.

Before SKOPIL, SCHROEDER,^**  Circuit Judges, and BURNS,^***  District Judge.

MEMORANDUM^**** 

Eugene Noble appeals pro se the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He contends that (1) his conviction of first degree murder was not supported by sufficient evidence; (2) evidence admitted at his trial was seized unlawfully and should have been suppressed; and (3) the trial court instructed the jury improperly on the law of aiding and abetting. We affirm.

Noble's first contention is that his conviction was not supported by sufficient evidence. " [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). This standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law. Id. at 324 n. 16.

Under California law murder is defined as the unlawful killing of a human being with malice aforethought. Cal.Penal Code Sec. 187 (West 1970). Murder which is perpetrated by means of any willful, deliberate, and premeditated killing is first degree murder. Cal.Penal Code Sec. 189.

A rational fact finder could have found Noble guilty of first degree murder beyond a reasonable doubt. Trial testimony showed that Noble was with the victim for several hours prior to the killing. In fact, when the victim was last seen alive, Noble was leading him by the wrist. During the hours before the killing, Noble had access to or possession of objects similar to those with which the victim was beaten. One witness testified that Noble tormented and threatened the victim by pointing a shotgun at his head and in his mouth. The victim was killed with the same type of weapon. Several witnesses testified that the victim appeared bruised, bloody, and scared while accompanied by Noble. The last witness to see the victim alive testified that he saw Noble deliver an unprovoked blow of such force that it knocked the victim down. The victim was then taken away by Noble and others. Additional circumstantial evidence linked Noble with the scene of the killing.

We cannot say that upon the record no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319. We therefore reject Noble's claim of insufficient evidence.

II. Introduction of Unlawfully Seized Evidence

Noble's second contention is that the trial court erroneously admitted into evidence a shotgun alleged to be the murder weapon. He contends the weapon was seized in violation of the fourth amendment. The California Court of Appeals ruled that the seizure of the shotgun was unlawful but that its admission at trial was harmless error. Noble argues that the finding of harmless error deprived him of a full and fair hearing on his fourth amendment claim.

In Stone v. Powell, 428 U.S. 465, 494-95 (1976), the Supreme Court held that where the state provided an opportunity for full and fair litigation of the fourth amendment claim, a state prisoner may not be granted federal habeas corpus relief on the claim that unlawfully seized evidence was introduced at his trial.

The state trial court held an evidentiary hearing on Noble's motion to suppress the shotgun. Thereafter the California Court of Appeals gave full consideration to Noble's fourth amendment claim on direct appeal (resulting in the finding of "harmless error"). We conclude that Noble received a full and fair consideration of his fourth amendment claim in the state trial and appellate courts. Noble's contention that the "harmless error" finding was an incorrect decision is insufficient by itself to alter this conclusion. He is now precluded from reraising the claim in his federal habeas corpus petition. See Locks v. Sumner, 703 F.2d 403, 408 (9th Cir.), cert. denied, 474 U.S. 993 (1983).

Noble's third contention is that the trial court, after giving proper formal jury instructions on aiding and abetting, erred by summarizing those instructions in common language: " [O]ne who helps or assists another in the accomplishment of a common purpose is an aider and abettor." Noble contends this statement removed the government's burden of proving that Noble had the specific intent to commit the murder or to encourage or facilitate the commission of the murder.

Under California law a proper jury instruction on aiding and abetting must instruct the jury that to find the defendant guilty it must find that he acted with specific intent. People v. Beeman, 35 Cal. 3d 547, 560, 674 P.2d 1318, 1326, 199 Cal. Rptr. 60, 68 (1984). Insofar as Noble challenges the jury instructions under California law, his claim is not cognizable in a federal habeas corpus proceeding. Willard v. People of State of Cal., 812 F.2d 461, 463 (9th Cir. 1987). Our concern is whether the instructions violated Noble's due process rights.

Independent of state law, due process does not require that an aiding and abetting charge contain distinct instructions regarding specific intent. Willard, 812 F.2d at 463. Due process does require proof beyond a reasonable doubt of every fact necessary to constitute the crime with which the accused is charged. In re Winship, 397 U.S. 358, 364 (1970). A jury instruction violates due process if it shifts the burden of proof from the prosecution to the defense on an essential element of the crime, such as intent. Sandstrom v. Montana, 442 U.S. 510, 523-24 (1979).

The trial court's plain English summarization did not infect the jury charge with a mandatory presumption of specific intent once the state proved predicate facts. The court's statement did not contradict the formal instructions which, as Noble concedes, complied fully with Beeman. Nothing in the court's statement excluded the distinct specific intent instruction contained in the formal jury charge. The California Court of Appeals ruled that the giving of the formal jury instructions cured any defect in the informal statement with respect to state law. The instructions, taken together as they must be, are more than sufficient under due process standards.

Even if the trial court's informal statement had been erroneous, the record contains evidence of intent that is so dispositive that this court has no reasonable doubt that the jury would have found it unnecessary to rely on any presumption of intent created or permitted by the jury instructions. See McKenzie v. Risley, 842 F.2d 1525, 1530-31 (9th Cir. 1988) (en banc). Thus error, if any, based on the trial court's informal instruction, was harmless. Id.

AFFIRMED.