Unpublished Disposition, 862 F.2d 318 (9th Cir. 1986)

* OVERVIEW

Petitioners Terry Allen Clark and William Carrol Smith (collectively "petitioners") appeal the district court's denial of their joint application for writs of habeas corpus. The district court, pursuant to the findings and recommendations of a United States magistrate, entered judgment on November 20, 1986 dismissing the application.

Petitioners were convicted after a jury trial in Stanislaus County, California. Clark was convicted of second degree murder with the use of a firearm, attempted manslaughter with use of a firearm, and infliction of great bodily injury. Smith was convicted of first degree murder with the use of a firearm, and attempted manslaughter while armed with a firearm. Petitioners challenge these convictions claiming that: (1) California's Proposition 8 was applied in an ex post facto manner at their trial; (2) there was prosecutorial misconduct concerning (a) testimony about the legality of a sawed-off shotgun used in the commission of the crime; and (b) improper reference to facts not in evidence during closing arguments; (3) the trial court erred in (a) giving the jury an improper instruction on an uncharged offense; (b) refusing to give defense instructions; (c) failing to give a sua sponte instruction on accomplice testimony; and (d) failing to give a sua sponte instruction on immunity.

We have jurisdiction under 28 U.S.C. § 2253. We affirm the district court's denial of the writs.

II

FACTS

We adopt, in their entirety, the factual findings of the United States magistrate which were adopted in full by the district court. Those findings were taken, in part, from the unpublished California District Court of Appeal opinion affirming petitioner's convictions, and also from the magistrate's review of the record.

Petitioner Smith's home was burglarized on April 2, 1982. His wife was tied up and threatened by two armed, masked men. When Smith returned home with his friend Clark and found his wife bound and crying, he became very upset. He immediately suspected Charles Robison. Robison had been to Smith's house earlier that day with Lonnie Duford, and Smith had shown Robison and Duford his gun and jewelry collections, and stereo equipment. Smith and Clark went to Robison's house several times to confront him, but he was not at home. Robison called Smith two days later to inform him that Lonnie Duford, not he, had committed the burglary. However, Mrs. Smith, listening on the telephone extension, identified Robison's voice as that of one of the burglars. Several days later, Smith received a call from a friend, Barbara Casey. She told Smith that her neighbor, Allen Parker, had some rings to sell and that he had purchased the rings from Lonnie Duford. Petitioners went to Mr. Parker's house where they identified the rings as stolen from Smith's house on April 2. Smith "paid" Parker for the rings with drugs, and regained possession of them.

Thereafter, Parker attempted to arrange a meeting between petitioners and Lonnie Duford, but Duford failed to show. A second meeting was arranged, which was to take place at Barbara Casey's house. Duford was told that he could purchase drugs at Casey's house. He was not told that petitioners would be there. Parker was to bring Duford and Robison to Casey's house and then leave immediately.

On the night of April 12, petitioners went to Barbara Casey's house as planned. Petitioners believed that both Duford and Robison would appear. Petitioners knew that Duford and Robison were regularly armed, and thus they armed themselves with shotguns. Smith carried a shotgun which he had sawed off in anticipation of the meeting. Petitioners gave Casey a bag of drugs which they told her to pour onto a mirror when Duford and Robison arrived. They then secreted themselves in darkened back rooms.

Parker arrived with Duford and another man, Lance Roberson. Robison did not accompany them. Instead of leaving as planned, Parker walked toward the back of the house. Petitioner Clark ran into the kitchen, shotgun in hand, telling Duford and Roberson to "hit the deck" and "don't move." Roberson then went for the floor, but Duford drew a handgun from his kidney belt. Duford ran into the living room, pursued by Clark. Clark testified that Duford turned towards him and Clark fired the shotgun because he thought Duford was going to shoot him.

Meanwhile, Smith was still hidden in the back of the house. He testified that he heard some sounds, looked into the darkened hall, and thought he saw someone pointing a gun at Clark. Smith thought the person was Robison, but it was Parker. Smith testified that he wrestled with the man over the gun. They ended up in the bathroom where Smith testified he accidently bumped his elbow, causing the shotgun to fire. The prosecutor presented evidence that Parker was found by the police with the zipper on his pants down, with his penis out, as though he were urinating at the time he was shot. A pathologist testified that Parker was shot from a distance of eight to nine feet while standing erect. After petitioner Smith dragged Parker's body to the kitchen, he remarked, "This ain't the right mother-fucker." Both petitioners fled, telling Casey to call an ambulance.

Parker died from his wound, while Duford recovered.

III

ANALYSIS

We review the district court's denial of a writ of habeas corpus de novo. Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir. 1987) (citing Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985)). "Our review of a state petitioner's claims is only for the narrow purpose of determining whether due process has been violated." Lincoln v. Sunn, 807 F.2d at 808, (citing Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)).

During the petitioners' trial, the prosecutor impeached Smith on a collateral matter by establishing that Smith owned, and subsequently sold, a stolen go-cart. Petitioners contend that this evidence would have been inadmissible but for the trial judge's ex post facto application of the liberal evidentiary rules of California Constitutional Initiative Proposition 8, which was adopted 57 days after the information was filed against Clark and Smith. We disagree.

The ex post facto clause of the United States Constitution prohibits "any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives the one charged with crime of any defense available according to the law at the time when the act was committed...." Beazell v. Ohio, 269 U.S. 167, 169 (1925). The amendment of state evidentiary statutes to expand the categories of admissible evidence does not constitute an ex post facto law as applied to one accused of committing an earlier crime. Thompson v. Missouri, 171 U.S. 380, 386-387 (1898).

[W]e cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offence was committed. [The statute at issue] when applied to this case, did not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act involved in his offense criminal that was not criminal at the time he committed the murder of which he was found guilty. It did not change the quality or degree of his offence.

Id. 387.

Furthermore, a change in the law, which is procedural, is not ex post facto even though it may disadvantage a criminal defendant. Dobbert v. Florida, 432 U.S. 282, 293 (1977), reh'g denied, 434 U.S. 882 (1977). A law which does not alter or affect the length, severity, weight, or other significant condition of punishment is procedural. United States v. McCahill, 765 F.2d 849, 850 (9th Cir. 1985).

The district court concluded that the evidence of Smith's ownership and sale of the stolen go-cart did not alter or affect the length, severity, weight, or other significant condition of his punishment; the evidentiary changes wrought by Proposition 8 were procedural and did not violate the ex post facto clause of Article I of the Constitution. We agree.

No ex post facto violation occurred by the admission of this evidence pursuant to Proposition 8.

Petitioners also contend that the trial court erroneously admitted "other crimes" evidence to the effect that petitioner Smith was wearing a stolen gold stick pin at the time of his arrest. This contention lacks merit. The petitioners concede they did not object to the admission of this evidence at the time of trial, and they offer no excuse for their failure to object. This failure to comply with the state procedural rules, absent a showing of "cause" for the failure and actual "prejudice" resulting from the alleged constitutional violation, precludes federal habeas review in this case. See Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977).

On appeal, petitioners argue that they were prejudiced because the evidence concerning the stolen gold stick pin bolstered "previously objected to testimony" regarding Smith's ownership and sale of the stolen go-cart, and "served to further erode the credibility of appellant Smith." This argument is meritless. The "previously objected to testimony" concerning the go-cart was not erroneously admitted. And, as with the go-cart evidence, no showing was made of "cause" for the procedural default, nor of "prejudice" resulting therefrom.

Petitioners allege prosecutorial misconduct concerning (1) testimony about the legality of a sawed-off shotgun used in the murder, and (2) improper reference, in closing argument, to facts not in evidence.

" [T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). "The relevant question is whether the prosecutors' comments '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), reh'g denied, 107 S. Ct. 24 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). The appropriate standard of review for allegations of prosecutorial misconduct is " 'the narrow one of due process....' " Id. (quoting Donnelly v. DeChristoforo, 416 U.S. at 642).

Three times during trial the prosecutor attempted to have witnesses characterize or acknowledge the illegality of a sawed-off shotgun. The trial court sustained defense counsel's objections each time, twice admonishing the jury to disregard the irrelevant matters. Petitioners argue that the prosecutor's actions amounted to prejudicial misconduct of constitutional dimensions.

The California District Court of Appeal found that " [a]lthough the district attorney appeared deliberately to solicit the same information from two witnesses after the trial court's initial ruling, the evidence as to the defendant's participation was neither close nor their guilt, at least as to doing the acts, in doubt. The jury's only real task in this case was evaluating defendant's proffered justifications or excuses for the homicide and, rejecting those, setting the degree of the murder or finding manslaughter. Given the probable widespread knowledge that it is illegal to saw off a shotgun, the 'misconduct' did not result in a miscarriage of justice."

The district court conducted an independent review of the record, and found no basis upon which to disagree with the California court. We find no error in this conclusion. The prosecutor's comments did not so infect the trial with unfairness as to make the resulting conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986).

Petitioners also argue that the prosecutor made reference to facts not in evidence during his closing argument. During the trial, the prosecutor attempted to question the wife of petitioner Smith as to her knowledge that her home had contained stolen property. The trial court sustained the defense objection that this line of questioning was irrelevant. The prosecutor then argued, in closing, that evidence presented at trial supported a reasonable inference that there was stolen property in the Smith residence. Petitioners concede that they did not object to the prosecutor's argument.

Once again, petitioners have failed to show cause for their procedural default, and actual prejudice resulting from the prosecutor's actions. The district court properly denied relief based on this claim. Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977).

Petitioners further challenge their convictions on the grounds that the trial court erred in (1) giving the jury an improper instruction on an uncharged offense; (2) refusing to give defense instructions; (3) failing to give a sua sponte instruction on accomplice testimony; and (4) failing to give a sua sponte instruction on immunity.

"Habeas corpus relief is not available to set aside a conviction on the basis of an erroneous jury instruction unless the error rendered the trial so fundamentally unfair as to deny due process." Shepherd v. Nelson, 432 F.2d 1045, 1046 (9th Cir. 1970); see also Quigg v. Crist, 616 F.2d 1107, 1111 (9th Cir. 1980), cert. denied, 449 U.S. 922 (1980). The allegedly erroneous instruction must so infect the entire trial that the resulting conviction violates due process. Cupp v. Naughten, 414 U.S. 141, 147 (1973).

The trial court instructed the jury that a sawed-off shotgun is an illegal weapon.¹  Petitioners claim that this instruction so infected the entire trial that the resulting convictions violate due process. However, the thrust of petitioner's argument on this issue is aimed at the prosecutor's attempts to admit evidence of the illegality of the shotgun. As we discussed above, the prosecutor's actions did not rise to the level of a constitutional violation.

Furthermore, the defense requested the following instruction and the trial court gave it to the jury:

The unintentional killing of a human being is excusable and not unlawful when committed by accident and misfortune in the performance of a lawful act by lawful means and where the person causing the death acted with that care and caution which would be exercised by an ordinarily careful and prudent individual under like circumstances.

This instruction raises the question of whether Parker's death was excusable. In order to satisfy the elements of this instruction, the jury would have to find, inter alia that the killing was done by "lawful means." As the district court noted, since the murder was committed with Smith's sawed-off shotgun, the legality of the shotgun became relevant to the jury's determination. This instruction did not render the trial "so fundamentally unfair as to deny due process." Shepherd, 432 F.2d at 1046.

Petitioners next contend that the trial court's refusal to give certain instructions requested by the defense was reversible error of constitutional magnitude.

Petitioner requested the trial judge to instruct the jury on the privilege of recaption. The requested instruction reads: "The owner of personal property has an absolute right to exclusive possession of it, and may use reasonable force to retake from the thief possession of property stolen from him." Reasonable force to retake personal property never includes deadly force in the absence of a life threatening attack on the person. Hickey v. United States, 168 F. 536, 537 (9th Cir. 1909); see also W. LaFave & A. Scott, Criminal Law, Ch. 5 Sec. 55 (1978). As the appellee aptly points out, petitioners were not "entitled, in vigilante fashion, to assaultive self-help methods involving deadly force to recapture items of personal property." The trial court properly refused to give the requested instruction.

Petitioners contend they were denied due process when the California trial court refused their request to add to California's CALJIC 8.25 "lying in wait" jury instruction language to the effect that the "lying in wait" had to be for the purpose of inflicting intentional bodily harm and not for some other purpose. We disagree. The California District Court of Appeal determined in its unpublished decision that it would have been error for the trial court to have modified California's lying in wait instruction as the petitioners requested. In addition, the magistrate noted in his findings and recommendations that under California's CALJIC 8.25 lying in wait instruction a defendant's purpose in lying in wait is irrelevant. Finally, the refusal of the trial court to modify CALJIC 8.25 as petitioners requested did not render their trial "so fundamentally unfair as to deny due process." See Shepherd, 432 F.2d at 1046.

Petitioners also argue that the trial court erred in failing to instruct the jury, sua sponte, on accomplice testimony. In their brief, petitioners argue that Barbara Casey was an accomplice. Barbara Casey testified that she agreed to help petitioners get their stolen property back by making her house available as a meeting place for petitioners, and Robison and Duford. She further testified that when petitioners arrived at her home on the night of the assault, petitioner Clark showed her a plastic bag with white powder in it and she agreed to "pour some out onto [a] mirror" and offer it to Robison and Duford when they arrived.

Petitioners cite United States v. Davis, 439 F.2d 1105 (9th Cir. 1971) and United States v. Bernard, 625 F.2d 854 (9th Cir. 1980) in support of their position. These cases are inapposite. In Davis, we adopted a narrow holding dealing with the question of when a court's failure to give a cautionary instruction is reversible error. We stated:

[W]e hold that where, as in this case, the instruction is requested and where the guilt of the defendant rests almost entirely upon the testimony of an accomplice and where, as here, such accomplice has given contradictory stories in an apparent attempt to inculpate a defendant, the failure of a court to give a cautionary instruction is error, prejudicial to the appellant and justifies a reversal of his conviction.

Davis, 439 F.2d at 1107.

We first point out that it is unclear from the record whether Barbara Casey actually was an accomplice of Smith and Clark. Assuming, arguendo, that Barbara Casey's conduct did render her an accomplice, petitioner's arguments fail to meet the standard set forth in Davis. Petitioners never requested an instruction, petitioners' guilt did not rest entirely upon the testimony of Casey, and Casey did not give contradictory stories in an apparent attempt to inculpate either Smith or Clark. Furthermore, Casey's testimony was favorable to petitioners. It corroborated essential portions of Smith's testimony.

In Bernard, we found no error in the district court's refusal to instruct the jury with respect to accomplice testimony. United States v. Bernard, 625 F.2d at 857. Judge Wallace, in a concurring opinion, pointed out that the "formulation of jury instructions is a matter within the discretion of the trial judge...." Id. at 861 (Wallace, J., concurring). In the instant case, we find no abuse of discretion by the trial judge, amounting to a violation of due process.

Finally, petitioners argue that the trial court had a sua sponte duty to instruct the jury that the testimony of an immunized witness must be viewed with distrust. Lonnie Duford, the surviving victim of the assault, testified under a grant of immunity at trial.

The trial court instructed the jury that, in determining the believability of a witness, they could consider the existence of bias, interest, or other motive. Additionally, Duford's credibility was attacked at length by both defense counsel during closing argument. Petitioner Clark's attorney ended with the following comment on Duford's credibility: "I suggest to you the man is a patent liar. He has been granted immunity in this case by the prosecutor. And that's something you can decide to do with yourself. I suggest to you that it certainly doesn't make his testimony any more credible." The trial court's instruction concerning bias, interest or other motive, coupled with Clark's attorney's argument to the jury placed before the jury the question of whether Lonnie Duford's testimony should be viewed with distrust. No constitutional error occurred.

AFFIRMED.