Unpublished Disposition, 859 F.2d 924 (9th Cir. 1988)

Warden Eddie Ylst appeals the district court's order granting a writ of habeas corpus to Terry Trainer, a California state prisoner, under 28 U.S.C. § 2254. The order was stayed pending this appeal, and Trainer remains in state custody. We now reverse the order that granted the writ.

Trainer was convicted of first degree murder, robbery, and grand theft of an automobile. It is not clear whether the murder conviction was under the felony-murder rule or for premeditated murder. The sole issue in this appeal is whether the state trial court's failure to instruct the jury on the diminished capacity defense to the murder charge was constitutional error. The court read a diminished capacity instruction regarding the robbery charge.

We review a district court's disposition of a petition for a writ of habeas corpus de novo. See Darnell v. Swinney, 823 F.2d 299, 300 (9th Cir. 1987), cert. denied, 56 U.S.L.W. 3568 (1988).

" 'State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates ... the Federal Constitution.' " Miller v. Stagner, 757 F.2d 988, 992 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986) (citation omitted). Failure to give a jury instruction that may have been proper under state law is not itself a federal constitutional violation. Id. at 993. To win federal relief, Trainer must establish that denial of the diminished capacity instruction deprived him of due process. Id. A due process deprivation occurs when failure to give a jury instruction precludes the jury from considering a defendant's viable defense. See United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir. 1984). To prove his right to the instruction, Trainer must show that the evidence presented at trial supported the defense under state law. Miller, 757 F.2d at 993.

Under California law, a diminished capacity instruction is required where a "defendant makes a sufficient factual showing of a diminished capacity which would prevent him from forming the requisite specific intent which is a necessary element" of the crime charged. People v. Frierson, 158 Cal. Rptr. 281, 287-88 (Sup.Ct.1979). The defendant must present evidence of the amount of drugs he ingested as well as evidence of the drugs' effect on his ability to form the specific intent necessary for the crime charged. Id. at 288.

In Frierson, there was testimony that the defendant had taken Quaalude and angel dust on the day the crime was committed, and that the drugs' effect on him was to make him "drowsy ... dazed.... Spaced out. Just not normal." Id. at 286. Nonetheless, the California Supreme Court held that "in the absence of evidence regarding the amount of drugs ingested by defendant and their effect upon his mental state" the diminished capacity instruction was not required. Id. at 288.

At trial, Trainer presented evidence that he was a heroin addict and that he had injected or ingested heroin on the day of the crime. There was some evidence of the amount of heroin that he used. However, he failed to make the required showing as to the drug's effect on his ability to form the necessary intent. The testimony that Trainer presented--that his conversation was rambling, his pupils were dilated, and he appeared to be tripping--are close to the evidence that the Frierson court found to be insufficient. We conclude that Trainer failed to present the substantial evidence required by California law to support the diminished capacity defense.

The trial court's instruction on diminished capacity as to only the robbery charge does not affect our decision. Although a court "through an abundance of caution, or neglect or mistake, gives partial instructions on diminished capacity ... when no such instructions are warranted," nonetheless, a reviewing court may determine that the diminished capacity defense was "unworthy of consideration." Frierson, 158 Cal. Rptr. at 288 (quoting People v. Cisneros, 34 Cal. App. 3d 399, 427 (1973)).

Because we find that constitutional error is not present in this case, we need not reach the harmless error issue. In addition, we note that Trainer has waived his ineffective assistance of counsel claim by failing to file a notice of appeal and present the claim to this court.

REVERSED.

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