Unpublished Disposition, 857 F.2d 1478 (9th Cir. 1981)

No. 87-15016.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and WIGGINS, Circuit Judges, and ROBERT J. KELLEHER,^**  District Judge.

MEMORANDUM^*** 

Petitioner-appellant Richard Shores, Jr. (Shores) appeals a district court order denying his petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

* On December 17, 1981, Shores shot and killed Shirley Robinson. Upon being questioned by police at the shooting scene, Shores gave inconsistent statements as to how the shooting happened. After the police read Shores his Miranda rights, Shores gave additional statements that led to his arrest.

At trial for murder, Shores testified that the shooting was accidental, and that he was unaware that the gun was loaded. Other evidence at trial established that on earlier occasions Shores had brandished a revolver in front of others and threatened to kill Robinson with it. There was testimony that just before the shooting Shores and Robinson became involved in a shouting match during which Shores displayed the revolver. Shores' landlady testified that she heard the shouting, a gunshot, and that Shores stated to her that he had shot Robinson and asked her to call an ambulance.

The pathology report showed that Robinson died from a single gunshot wound, fired from more than four feet away. An examination of the gun revealed it required a force of about five and one half pounds to pull the trigger. Thus, it was not a hair trigger.

Shores was convicted of second degree murder. After exhausting his state remedies, he then filed the present petition for a writ of habeas corpus.

II

We review de novo a district court's decision to grant or deny a petition for a writ of habeas corpus. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985). In reviewing a district court's grant or denial of a habeas corpus petition, state court factual conclusions are entitled to a presumption of correctness under 28 U.S.C. § 2254(d).

III

Shores first argues that he was denied his constitutional right to a trial by an impartial jury drawn from a representative cross-section of the community. It is the petitioner's burden to prove a prima facie case of underrepresentation:

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979).

The district court concluded that Shores, a black, had failed to make a prima facie showing that blacks were unconstitutionally underrepresented in the panel of jurors from which the jury was drawn. The district court determined that only one person in appellant's fifty-member jury panel was black. The district court also determined that the relevant community--Contra Costa County, California--was, at the time of Shores' trial, 8.1 percent black.

We agree with the district court's conclusion that Shores has failed to establish the second prong of Duren, since the disparity between the proportion of blacks in the community and the proportion of blacks on petitioner's panel was not "statistically significant." Hazelwood School District of United States, 433 U.S. 299, 309 fn. 14 (1977); Castenada v. Partida, 430 U.S. 482, 497 fn. 17 (1977).

IV

Shores also attacks the sufficiency of the evidence establishing the requisite mens rea for a second degree murder conviction.

When a petitioner in a habeas corpus proceeding contends that the evidence was insufficient to support his conviction, the court must determine "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." Miller v. Stagner, 757 F.2d 988, 992 (9th Cir. 1985), amended 768 F.2d 1090 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The evidence presented was sufficient to support the conviction under this standard. There was testimony at the trial to indicate that petitioner had been arguing with Ms. Robinson just prior to the shooting. There is no doubt that petitioner actually shot Ms. Robinson. The state's expert testified that the angle of the wound indicated that Ms. Robinson had been shot while she was upright, from an intermediate range. There was also testimony that petitioner had originally told police that the incident occurred after Ms. Robinson lunged for the gun, causing the discharge of the weapon. The police testified that petitioner gave several inconsistent accounts of the events leading up to the shooting. Under the standard of malice defined in People v. Lines, 13 Cal. 3d 500, 505-06 (1975), the court correctly concluded from the trial record that the evidence was adequate to support the jury's finding of implied malice and its verdict of second degree murder.

V

Shores argues that the trial court's reading of two jury instructions violated his due process rights. The first disputed jury instruction concerned malice. The court instructed the jury on implied malice as follows:

Malice is implied when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life by which is meant an awareness of a duty imposed by law not to commit such acts followed by the commission of the forbidden act despite that awareness. If a person, while committing an act involving a high degree of probability that it would result in death which act is done for a base antisocial purpose and with wanton disregard for human life causes another's death, malice is implied and the crime is murder....

Shores argues that this instruction shifted the burden of proof regarding malice. We find no merit to Shores' argument and that no reasonable juror could have believed that the instructions shifted the burden of proof to the petitioner.

Shores also alleges that it was "prejudicial error for the court to instruct the jury that a violation of California Penal Code Sec. 417 [brandishing] is ipso facto an 'inherently dangerous misdemeanor' mandating an involuntary [manslaughter] conviction."

The definition of brandishing was read to the jury in connection with trial court instructions on "misdemeanor-manslaughter," a lesser included offense of murder. Petitioner was convicted of murder, not manslaughter. This instruction did not have any impact on the fairness of Shores' trial.

VI

Finally the district court correctly observed that it lacked the power in habeas proceedings to review the credibility of trial witnesses. Knaubert v. Goldsmith, 791 F.2d 722, 727 (9th Cir.), cert. denied, 107 S. Ct. 228 (1986).

AFFIRMED.