Unpublished Disposition, 867 F.2d 613 (9th Cir. 1989)

MEMORANDUM^** 

Lonnie Frank Elbert, a California state prisoner, appeals pro se the district court's order denying his 28 U.S.C. § 2254 habeas corpus petition. We review de novo, Watson v. Estelle, 859 F.2d 105, 106 (9th Cir. 1988), and affirm.

Elbert was convicted of felony murder for the death of a thirteen year-old girl. The jury found that Elbert had aided and abetted the attempted robbery during which the victim was shot, but was not the "triggerman."

* Jury Instructions

Elbert contends that the trial court erred in refusing to instruct the jury on the offense of accessory after the fact. This contention lacks merit.

A state court's failure to give a jury instruction is not a federal constitutional violation cognizable in a habeas action unless the petitioner establishes that the denial of the instruction deprived him of due process. Miller v. Stagner, 757 F.2d 988, 993 (9th Cir. 1985), as amended, 768 F.2d 1090, 1091, cert. denied, 475 U.S. 1048 (1986). A due process deprivation occurs when the failure to give an instruction precludes the jury from considering a viable theory of defense, see Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir.), cert. denied, 469 U.S. 838 (1984), or if the evidence warrants such an instruction under state law, see Miller, 757 F.2d at 993, 768 F.2d at 1091.

Elbert presented no evidence in his defense, and his only argument to the jury was that he should be convicted of manslaughter rather than murder because his intent was to aid only in the commission of an assault and battery, not a robbery. An accessory after the fact instruction would be inconsistent with this theory of the case. Under California law, the crime of accessory after the fact requires that someone other than the defendant committed a completed felony.¹  If Elbert aided and abetted an assault and battery, then he himself would be a principal in that offense, not an accessory. Moreover, assault and battery are misdemeanors, not felonies. Cal.Penal Code Secs. 17, 241, 243.

Finally, there is no combination of facts under which Elbert could have been an accessory after the fact. Although he drove the car away from the murder scene, the evidence clearly establishes that he also positioned the car next to that in which the victim was riding immediately prior to the shooting. The rejection of the requested jury instruction did not violate Elbert's right to due process.

II

Prosecutorial Misconduct

Equally meritless is Elbert's contention that the district attorney prosecuting his case committed prejudicial misconduct in his closing argument by appealing to the jurors' sympathy for the victim and referring to facts not in evidence.

Comments made by a prosecutor constitute constitutional error if the statements "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986). See also Greer v. Miller, 107 S. Ct. 3102, 3109 (1987). In Darden and Greer, the Supreme Court enumerated certain factors to be considered in an evaluation of a trial's fundamental fairness. Applying this analysis, we cannot find that the prosecutor's conduct in the instant case denied Elbert a fair trial.

First, the prosecutor's argument did not implicate specific rights of the accused such as the right to remain silent. See Darden, 477 U.S. at 181-82. Second, although the prosecutor may have manipulated or misstated the evidence, see id., because he alluded to pictures of the victim which were not in evidence, any impressions the jury had regarding the victim's appearance would have been reached during the testimony of the coroner and the witnesses to the shooting. We agree with the California court of appeal that this statement was "innocuous."

Third, the trial court instructed the jurors that their decision was to be based on the evidence alone, not sympathy or passion. Id. Finally, the weight of the evidence against Elbert reduced the likelihood that the jury's decision was influenced by the prosecutor's comments. Id. The prosecutor's comments did not deprive Elbert of due process.

III

Disproportionate Sentence

When sentences are challenged as disproportionate in violation of the eighth amendment, the court must look to the following objective criteria: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for the commission of the same crime in other jurisdictions. United States v. Terrovona, 785 F.2d 767, 771 (9th Cir.), cert. denied, 476 U.S. 1186 (1986) (citing Solem v. Helm, 63 U.S. 277, 292 (1983)). Applying these criteria, it is obvious that Elbert's sentence of 25 years to life for felony-murder is not grossly disproportionate.

Homicide is certainly the most serious of offenses, and therefore punishable by serious penalties. Indeed, had Elbert been one month older at the time of the shooting, he would have been sentenced as an adult and could have received a life sentence for the same offense. See Cal.Penal Code Sec. 190. Moreover, the sentences imposed in other jurisdictions for a murder committed in the course of an armed robbery are equally if not more severe. A number of states in this circuit impose life imprisonment for such an offense. See, e.g., Ariz.Rev.Stat. Sec. 13.703; Idaho Code Sec. 18-4004; Wash.Rev.Code Sec. 9 A. 32.046; Nev.Rev.Stat. Sec. 200.030. Finally, even if Elbert had been convicted only of aiding and abetting an armed robbery, several states still provide the possibility of a life sentence for that offense. See Idaho Code Sec. 18-6503; Or.Rev.Stat. Sec. 161-605; Wash.Rev.Code Sec. 9 A. 20.010. See also Mont.Code Ann. Sec. 45-5-401 (armed robbery punishable by not less than 2 or more than 40 years). As such, Elbert's eighth amendment claim is frivolous. See People of Territory of Guam v. Root, 524 F.2d 195, 198 (9th Cir. 1975), cert. denied, 423 U.S. 1076 (1976) (claim that life sentence for felony-murder was unconstitutionally disproportionate was frivolous because underlying felony of armed robbery was still punishable in several other jurisdictions by life imprisonment).

AFFIRMED.