Unpublished Disposition, 923 F.2d 861 (9th Cir. 1991)

MEMORANDUM^** 

Appellant Patrick Barrington Garnett was convicted in a California state court of one count of robbery and one count of kidnapping with the intent to commit robbery. The jury apparently believed the victim's testimony that Garnett accosted him at a gas station, drove him about a half mile in the victim's car, and then took his money and forced him out of the car. Garnett's defense was that he had not kidnapped the victim; instead the victim had given his car to Garnett the night before as security for a drug purchase. After exhausting his state remedies, Garnett filed a petition for habeas corpus in the district court. The district court denied his petition, and Garnett appeals. We affirm.

We review a district court's denial of a habeas corpus petition de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). Garnett first argues that he was denied effective assistance of counsel because his trial counsel failed to present expert testimony on the distance the victim was transported. Garnett contends in his brief that the distance was only about 200 feet, a distance arguably insufficient to constitute kidnapping.

To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel made a strategic choice to argue that Garnett did not commit the crime. Presenting evidence on the distance the victim was transported would have undermined that defense. Furthermore, Garnett was not prejudiced. His own diagram shows that the victim was transported 2536.5 feet, or .48 mile, an estimation not significantly different than the victim's estimation of a half mile.

Garnett also argues that counsel erred in failing to request a jury instruction on the lesser included offense of simple kidnapping. "If the intent to rob ... is formed after the victim is seized, the offense ... is simple kidnaping and not kidnaping for the purpose of robbery." People v. Bailey, 38 Cal. App. 3d 693, 699, 113 Cal. Rptr. 514, 517 (1974). When, as here, the prosecution presents no direct evidence on when the defendant formed the intent to rob, the defendant is entitled to an instruction on simple kidnapping. Id., 113 Cal. Rptr. at 517-18.

Nevertheless, the issue in Garnett's petition is whether counsel's failure to request a simple kidnapping instruction constituted ineffective assistance. "Defense counsel need not request instructions inconsistent with its trial theory." Butcher v. Marquez, 758 F.2d 373, 377 (9th Cir. 1985). Counsel chose to present the defense that Garnett did not commit the crime. An instruction on simple kidnapping would have been inconsistent with that defense and could have undermined it by focusing the jury's attention on when Garnett formed the intent to rob rather than on whether he committed the kidnapping. Garnett has failed to show that a reasonably competent attorney would not have made that strategic choice. See id. at 376-77 (counsel not ineffective in declining instructions on voluntary manslaughter when he believed it would detract from alibi defense).

Garnett finally argues that the trial court erred in not giving the simple kidnapping instruction sua sponte. This argument fails to present a constitutional question that can be considered in a federal habeas corpus proceeding. See James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976). Failure to give an instruction on a lesser included offense can be constitutional error only if the court failed to give adequate instructions on the defendant's theory of defense. Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir.), cert. denied, 469 U.S. 838, 105 S. Ct. 137, 83 L. Ed. 2d 77 (1984). Because Garnett's theory of defense was that he did not kidnap the victim at all, the court gave adequate instructions and committed no constitutional error.

AFFIRMED.