Unpublished Disposition, 862 F.2d 875 (9th Cir. 1987)

MEMORANDUM^** 

The appellant appeals pro se the district court's denial of his petition for habeas corpus relief under 28 U.S.C. § 2254. We affirm the decision of the district court.

BACKGROUND AND PROCEEDINGS BELOW

The appellant was convicted in March 1968 of first degree robbery in the State of Washington. His conviction was upheld by the Washington Supreme Court, State v. Frazier, 76 Wash. 2d 373, 456 P.2d 352 (1969), and he remains incarcerated in Walla Walla, Washington. On April 29, 1986, the appellant filed a petition for habeas corpus relief in the United States District Court for the Eastern District of Washington. His petition was denied on May 18, 1987. A summary of the facts as set out in the opinion of the Washington Supreme Court follows.

The victim testified that on October 29, 1967, he procured the services of a young woman for an "illicit relationship." Frazier, 456 P.2d at 353. Shortly after they had retired to her apartment, the appellant forced his way into the room and, after asserting that " [n]o white man will mess around with my wife," physically removed the victim from the premises. The victim testified that while he was retrieving his pants he saw the woman going through his billfold. The victim's money, wallet, necktie, cigarette lighter and hotel key was later recovered from the apartment. Id. at 353-54. Both the appellant and the woman, Quincy Hill Brown, were convicted of robbery in separate trials.

The appellant raises two issues in his claim for relief. First, he claims that his due process rights were violated because the information charged him as a principal, but the jury was given an aiding and abetting instruction. Second, he claims that the evidence presented at trial was insufficient to support his conviction. The government responds that due process was not offended simply because the accused was charged as a principal and convicted as an accomplice, and that the evidence was sufficient to support a finding of guilt. The government further argues that the appellant has failed to exhaust his state remedies.

STANDARD OF REVIEW

We review the denial of a petition for a writ of habeas corpus de novo. Darnell v. Swinney, 823 F.2d 299, 300 (9th Cir. 1987), cert. denied, 108 S. Ct. 1012, 98 L. Ed. 2d 978 (1988). "State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates ... the Federal Constitution." Townsend v. Sain, 372 U.S. 293, 312, 83 S. Ct. 745, 756, 9 L. Ed. 2d 770 (1963). Thus, we must review Frazier's claims "for the narrow purpose of determining whether due process has been violated." Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir. 1987).

EXHAUSTION OF REMEDIES

A state prisoner's petition for a writ of habeas corpus will not be granted in federal court unless the petitioner has first exhausted his state remedies. 28 U.S.C. 2254(b); Mabry v. Klimas, 448 U.S. 444, 100 S. Ct. 2755, 65 L. Ed. 2d 897 (1980); Myers v. Rhay, 577 F.2d 504, 511-12 (9th Cir.), cert. denied, 439 U.S. 968, 99 S. Ct. 459, 58 L. Ed. 2d 427 (1978). State remedies are exhausted when the claim has been "fairly presented" to the highest court of the state. Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971); Harris v. Superior Court, 500 F.2d 1124, 1128 (9th Cir. 1974) (en banc), cert. denied, 420 U.S. 973, 95 S. Ct. 1394, 43 L. Ed. 2d 652 (1975).

Frazier challenged both the "unconstitutional variance" in the information and the sufficiency of the evidence in his appeal before the Washington Supreme Court. Frazier, 456 P.2d at 355. Although the latter argument was not labeled as a federal claim, the sufficiency of the evidence to support a criminal conviction is a fundamental concern of the due process clause, see In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), and we will not deny a prisoner access to the federal courts simply because he has failed to "invoke the talismanic phrase 'due process of law' in the state proceedings...." Tamapua v. Shimoda, 796 F.2d 261, 263 (9th Cir. 1986). The petitioner has satisfactorily exhausted his state remedies.

AIDING AND ABETTING

The first issue focuses on the sufficiency of the information that was filed against the appellant. The information upon which the appellant was charged read as follows:

RAYMOND FRAZIER, on or about the 29th day of October, 1967, within Yakima County, Washington, with intent to deprive the owner thereof, did willfully, unlawfully and feloniously, then and there take from the presence of Edward M. Minor, and against his will, certain personal property, to-wit: the sum of approximately $200, lawful money of the United States of America, the personal property of Edward M. Minor, which said property was then and there within the lawful custody and control of the said Edward M. Minor, by means of placing the said Edward M. Minor in fear of immediate injury to his person, by then and there aiming at and exhibiting to the said Edward M. Minor a .22 caliber pistol and commanding that he make no resistance to said taking, which putting in fear was used to obtain possession of said property and to prevent and overcome any resistance to said taking, contrary to the statutes in such case made and provided, and against the peace and dignity of the State of Washington.

Frazier, 456 P.2d at 352 n. 1.

The appellant claims that the information was flawed because it failed to specify the penal statute being charged, and that it did not provide any basis for the trial judge to give an aiding and abetting instruction to the jury. The appellant contends that his conviction was based on this instruction, and that it constituted an impermissible variance from the information because the information made no mention of aiding or abetting.

The appellant cites State v. Royse, 66 Wash. 2d 552, 403 P.2d 838 (1965) in support of this proposition, but his reliance is misplaced. In Royse the defendant was charged with assault with the intent to commit a felony. The intended felony was not charged, and the prosecution offered four alternative theories of culpability, eventually leaving it to the jury to decide between kidnapping and rape. Id., 403 P.2d at 839. The Washington Supreme Court reversed Royse's conviction after determining that the charging document was "so uncertain that a person of common understanding would have no idea what the state intended." Id. at 840.

Here the defendant was adequately apprised of the charge against him. The State of Washington has abolished the distinction between principal and accomplice liability, so it is immaterial that the appellant may have been convicted of robbery on the basis of an aiding and abetting instruction. See State v. Carothers, 84 Wash. 2d 256, 525 P.2d 731, 736 (1974) ("The legislature has said that anyone who participates in the commission of a crime ... should be charged as a principal, regardless of the degree or nature of his participation."). " [T]he rule is well established ... that one who has been indicted as a principal may be convicted on evidence showing that he merely aided and abetted the commission of the offense." United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971). Our holding in Carothers v. Rhay, 594 F.2d 225 (9th Cir. 1979), is dispositive in this Circuit. In Carothers, the defendant was charged with robbery under the same Washington statute that the appellant was convicted under. He was charged as a principal, but the jury was instructed to convict him if they found that he had aided or abetted in the commission of the crime. Carothers was convicted, and he appealed, claiming, inter alia, that he was given insufficient notice that he was charged with aiding and abetting. Id. at 229.

We affirmed, noting that under Washington law, "any person who participates in the commission of a felony, whether he directly commits the offense or aids and abets in its commission, is a principal...." Id. See also Quigg v. Crist, 616 F.2d 1107, 1111 (9th Cir.) ("Under Carothers, the giving of an aiding and abetting instruction does not violate due process where the state has abolished the distinction between principals and accessories, and where there is evidence before the jury to support the instruction."), cert. denied, 449 U.S. 922, 101 S. Ct. 323, 66 L. Ed. 2d 150 (1980). The evidence was more than adequate to support the instruction.

SUFFFICIENCY OF THE EVIDENCE

The appellant claims that because the evidence presented at trial was largely circumstantial, and that it was never established that he knew that the crime was being committed, the evidence was insufficient to support his conviction. The petitioner must overcome a considerable burden: the verdict will not be disturbed if "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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (emphasis in original). We cannot conclude that the appellant has met this burden. Consequently his argument must fail.

A conviction can rest on evidence that is wholly or in part circumstantial. See Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S. Ct. 766, 769-70, 93 L. Ed. 919 (1949). A conviction for aiding and abetting is justified when the government proves that the defendant committed an overt act in furtherance of the crime and "that he shared in the criminal intent of the principal." Hernandez v. United States, 300 F.2d 114, 123 (9th Cir. 1962) (quoting Johnson v. United States, 195 F.2d 673, 675 (8th Cir. 1952)). The jury was presented with ample evidence from which to conclude that the appellant aided and abetted the commission of the crime of robbery. The government is not obligated to prove that the defendant was aware of every detail of the planned crime. United States v. Smith, 832 F.2d 1167, 1170 (9th Cir. 1987). Thus, the appellant's argument that his conviction is unsupported by the evidence is without merit.

Accordingly, the decision of the district court is affirmed.

AFFIRMED.