Unpublished Disposition, 927 F.2d 608 (9th Cir. 1982)

MEMORANDUM^* 

INTRODUCTION

Melcom Ray Correa was convicted of two counts of robbery in the first degree and four counts of kidnapping, in violation of Haw.Rev.Stat. Secs. 708-840(1) (b) (ii), 707-720(1) (c). Following direct appellate and state habeas corpus review, Correa filed a habeas corpus petition in federal district court in Hawaii. Correa challenged his conviction on three grounds: (1) the imposition of cumulative sentences for the robbery and kidnapping punished him twice for the same conduct, in violation of the double jeopardy clause of the fifth amendment; (2) the trial court's failure to instruct the jury and let them decide whether the robberies and kidnappings were separate or concurrent acts deprived him of his sixth amendment right to a trial by jury; and (3) the trial court's failure to give the jury a general mens rea instruction on the robbery counts denied him his sixth amendment right to trial by jury.

The district court denied the petition for habeas corpus. The court held that, under Hawaii law, kidnapping and robbery by threat comprise two distinct offenses because each requires proof of an element that the other does not.

With respect to the challenges levelled against the jury instructions, the district court held that Correa failed to state a claim for relief because he failed to allege that he requested the instructions at trial. The court also noted that Correa made no showing that the instructional errors (if any) infected the entire trial. The district court dismissed the jury instruction claims without prejudice, affording him sixty days within which to amend his habeas petition to correct the allegational defects. Correa did not amend his petition.¹ 

We affirm.

DISCUSSION

On the morning of November 24, 1982, Correa entered the Capital Jewelers store in Honolulu, Hawaii. Brandishing a handgun, he forced three employees and a customer into the store's bathroom. Correa then took jewelry and cash from the store and cash from one employee's handbag. Correa's attempt to steal money from the customer was frustrated when she informed him that she had no money.

The jury convicted Correa of robbery by threat of the employee and the customer, and of kidnapping the three employees and the customer.²  Correa argues that his simultaneous convictions for robbery by threat and kidnapping violate the double jeopardy clause, because the robbery counts subsumed the conduct underlying the kidnapping charges.

The robbery statute under which Correa was convicted reads, in pertinent part:

A person commits the offense of robbery in the first degree if, in the course of committing theft ... [h]e is armed with a dangerous instrument and ... [h]e threatens the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property.

Haw.Rev.Stat. Sec. 708-840(1) (b) (ii).

With respect to the kidnapping charge, Hawaiian law provides:

A person commits the offense of kidnapping if he intentionally or knowingly restrains another person with intent to ... [f]acilitate the commission of a felony or flight thereafter.

Haw.Rev.Stat. Sec. 707-720(1) (c). "Restrain" means "to restrict a person's movement in such a manner as to interfere substantially with his liberty ... [b]y means of force, threat, or deception." Haw.Rev.Stat. Sec. 707-700.

The double jeopardy clause of the fifth amendment commands that no person may "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The clause protects against multiple punishments for the same conduct. United States v. Gonzalez, 800 F.2d 895, 897 (9th Cir. 1986). In determining whether simultaneous prosecutions under separate statutes offend the double jeopardy clause, we inquire whether each charge requires proof of an additional fact that the other does not. Id. See also Blockburger v. United States, 284 U.S. 299, 304 (1932) ("The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.") In cases like this, where the double jeopardy claim refers to cumulative sentences imposed in a single prosecution, the fifth amendment's prohibition "does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366 (1983). See also Gonzalez, 800 F.2d at 898.³ 

In this case, the multiple convictions pass the test enunciated by the Supreme Court in Blockburger. The Blockburger analysis entails a case-specific inquiry, rather than an abstract comparison of statutory provisions. See Whalen v. United States, 445 U.S. 684, 694 (1980). Under Hawaiian law and the facts of this case, robbery by threat and kidnapping each require proof of a fact not encompassed by the other. A conviction for robbery under Haw.Rev.Stat. Sec. 708-840(1) (b) (ii) requires evidence of use of a "dangerous instrument" (such as Correa's gun) and a theft, neither of which was required to prove that Correa kidnapped the employee and customer.

Kidnapping, unlike robbery by threat, necessitates proof of an intent to restrain, which in turn requires evidence of a substantial interference with liberty. While both statutes may be violated through the use of threats, the purpose and effect of the threats are quite different. With robbery, the threat must be designed to force acquiescence in the theft of property. With kidnapping, the threat itself effects the restraint and the consequent deprivation of liberty.

The facts of this case, moreover, demonstrate the distinct accomplishment of two crimes. Correa completed the kidnappings prior to the commencement of the robbery. Herding the employees and customer into the bathroom at gunpoint, prior to the theft of any property, constituted kidnapping. Had Correa changed his mind at that point and never initiated the theft, he would have remained subject to prosecution for kidnapping. Cf. State v. Hoopii, 68 Hawaii 246, 252, 710 P.2d 1193, 1197 (1985) (act of restraining and forcibly moving victim prior to sexual assault constitutes kidnapping offense separate and apart from subsequent assault). That the kidnapping continued after the theft commenced does not affect the severability of the offenses. Id.; State v. DeCenso, 5 Hawaii App. 127, 135, 681 P.2d 573, 580 (1984).

We therefore affirm the district court's denial of relief on the ground of double jeopardy.

Correa's sixth amendment claim takes two forms. He first objects to the trial and appellate courts' failure to require the jury to find separate factual bases for the robbery and kidnapping charges. He argues that this deprived him of his right to have the jury determine the essential elements of the crimes. He challenges, secondly, the trial court's failure to instruct the jury on the general mens rea required for a robbery conviction.

A. The Necessity of a "Separate Factual Basis" Instruction

Correa predicates his argument of this claim on the assumption that the kidnapping and armed robbery convictions punished the same conduct. As noted in our discussion of the double jeopardy claim, however, the two convictions punish two distinct courses of conduct. Furthermore, the determination of whether one offense is included within another offense is a question of law to be resolved by the courts, and not by a jury.

Moreover, even were the separateness determination a question of fact to be presented to the jury, Correa has not demonstrated that the lack of an instruction " 'so infected the entire trial that the resulting conviction violates due process.' " Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).⁴  The showing necessary to invalidate a conviction on collateral attack on the basis of improper instructions "is even greater than the showing required to establish plain error on direct appeal." Kibbe, 431 U.S. at 154 (footnote omitted). Correa has made no such showing. In fact, the critical evidence--the timing of the kidnapping and the theft--was undisputed at trial. State v. Correa, 5 Hawaii App. 644, 645, 706 P.2d 1321, 1322 (1985).

Correa objects lastly that the jury was not required to find a general mens rea before convicting him of robbery. Correa concedes, however, that robbery by threat is a specific intent crime in Hawaii. Section 702-204 of Haw.Rev.Stat. directs that the mens rea element of a crime is satisfied when the prosecution proves the state of mind specified by the law defining the offense. Correa does not challenge the correctness of the specific intent instruction given the jury.

Moreover, even were Correa also entitled to a general mens rea instruction, its omission would be harmless error. A finding of specific intent necessarily encompasses a finding of a general intent because the former requires a higher degree of mental awareness and cognition than the latter. McKenzie v. Risley, 842 F.2d 1525, 1533-34 n. 17 (9th Cir.) (en banc), cert. denied, 488 U.S. 901 (1988).

We therefore affirm the district court's denial of relief under Correa's sixth amendment claims.

AFFIRMED.