Unpublished Disposition, 863 F.2d 886 (9th Cir. 1988)

MEMORANDUM^** 

Clarence O. Smith, a California state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Smith alleges that erroneous jury instructions led to his murder conviction in violation of the fourteenth amendment, and that his attorney's failure to use reasonable diligence to obtain certain testimony deprived him of his right to the effective assistance of counsel under the sixth and fourteenth amendments. We affirm.

* The facts of this case are fully set out in People v. Smith, 33 Cal. App. 3d 51, 108 Cal. Rptr. 698 (1973). On July 12, 1971, Smith attacked several people with a knife at a campground near his home. Id., 108 Cal. Rptr. at 702-03. He stabbed two people to death and wounded two others. Id.

In January, 1972, a jury in the Superior Court of Nevada County, California, convicted Smith of one count each of first-degree murder, second-degree murder, assault with intent to cause murder, and assault by means of force likely to commit great bodily injury. In the subsequent sanity phase of the trial, the jury rejected Smith's plea of not guilty by reason of insanity. The judge sentenced Smith to life imprisonment for first-degree murder and to other terms of imprisonment on the other charges, the sentences to run consecutively.

On direct appeal, a California court of appeal affirmed the convictions but modified the judgment to require all sentences to run concurrently with the life sentence for first-degree murder. Id., 108 Cal. Rptr. at 715. The California Supreme Court denied Smith's petition for a hearing on August 22, 1973.

Smith later petitioned in California state court for a writ of habeas corpus. The petition was denied on December 10, 1984, appealed through California courts, and finally denied by the California Supreme Court on May 1, 1985.

On May 23, 1985, Smith petitioned the district court for a writ of habeas corpus. The district court, adopting a magistrate's findings, denied the petition on September 17, 1987. We have jurisdiction over this timely appeal. 28 U.S.C. § 2253; Fed. R. App. P. 4(a) (1), 26(b). Smith raised and exhausted his claims in state proceedings.¹  See 28 U.S.C. § 2254(b). We review a denial of a habeas corpus petition de novo. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987).

II

Smith claims that the California trial judge's one-word error in restating the elements of first-degree murder while delivering a diminished capacity instruction violated due process by prejudicially affecting the outcome of the trial. The judge gave the jury a proper instruction defining first-degree murder as that "perpetrated by 'willful, deliberate and premeditated killing' formed "upon preexisting reflection 'but not that produced by an unconsidered and rash impulse, even though it included an intent to kill....' " Smith, 108 Cal. Rptr. at 709-10 (quoting CALJIC 8.20). The correct instructions for first-degree murder were repeated. Id. at 710. In its instruction on the diminished capacity defense, however, the court stated:

If you find that the murder was committed willfully, deliberately and with premeditation, you will find the murder to be of the first degree. If you find, however, that the defendant's mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, premeditate, deliberate or form an intent to kill, you will find the murder to be of the second degree. Premeditation, deliberation, or intent to kill, and malice must be present for the killing to be first degree murder.

The California Court of Appeal concluded that use of the disjunctive, "or," rather than the conjunctive, "and," was erroneous as a matter of California law. Smith, 108 Cal. Rptr. at 709. "Viewed literally, the instruction permitted the interpretation that intent and malice formed an alternative to premeditation and deliberation as the state of mind underlying first degree murder." Id. The court found the error not to be prejudicial, however. Id.

In reviewing state jury instructions, we concern ourselves only with whether the petitioner meets the burden of showing that the state court's erroneous instruction "so infected the entire trial that the resulting conviction violates due process."²  Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir. 1987) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)), cert. denied, 108 S. Ct. 1012 (1988); see Dunckhurst v. Deeds, No. 87-15052, slip op. 12735, 12743 (9th Cir. Oct. 7, 1988). We do not view a jury instruction in isolation, but in the context of the entire trial. Cupp, 414 U.S. at 146-47; Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir.), cert. denied, 469 U.S. 838 (1984). A state law error only concerns us if it rises to the level of a constitutional violation.³  "Undesirable, erroneous, or even universally condemned instructions may survive due process scrutiny." Van Pilon v. Reed, 799 F.2d 1332, 1342 (9th Cir. 1986).

Smith has absolutely no credible claim of a due process violation. The jury was thoroughly and properly instructed on the elements of first-degree murder. The record clearly supports the conviction of first-degree murder, despite the minor misstatement in a jury instruction. There is no reasonable possibility that use of "and" instead of "or" would have changed the verdict.

III

Smith further claims that the jury instructions violated his right to due process "either by creating an irrebuttable presumption of intent to kill or by illegitimately shifting to him the burden of persuasion on the issue of intent," that the instructions created the possibility of inconsistent verdicts, and that the court should have given an alternate instruction.

The court gave CALJIC 8.74 to the jury, as follows:

Before you may return a verdict in this case with respect to either charge of murder, you must agree unanimously not only as to whether the defendant is guilty or not guilty, but also, if you should find him guilty of an unlawful killing, you must agree unanimously as to whether he is guilty of murder of the first degree, or murder of the second degree or manslaughter or involuntary manslaughter.

This instruction told the jury that it must specify the degree of the offense of homicide for each count for which it returned a conviction. The judge further instructed the jury as to verdict forms:

In this case there are four possible verdicts as to each count charging murder and three possible verdicts as to each count charging assault with intent to commit murder. These various possible verdicts are set forth in the forms of verdict which you will receive. Only one of the possible verdicts may be returned by you as to any particular count. If you all have agreed upon one verdict as to a particular count, the corresponding form is the only verdict form to be signed as to that count. The other forms are to be left unsigned.

CALJIC 17.49.

Inconsistent verdicts are not in themselves error. See United States v. Powell, 469 U.S. 57, 61 (1984); United States v. Brown, 761 F.2d 1272, 1277 (9th Cir. 1985). In any case, we do not see how these instructions led to any inconsistency.⁴  The jury was properly instructed as to the possible verdicts, the form in which the verdicts were to be returned, and, in the case of unlawful killing, on the need to differentiate between degrees. These instructions did not address the elements of the crimes or burdens of proof at all, let alone unconstitutionally shift a burden of persuasion or create "an irrebuttable presumption of intent to kill."

Smith argues that CALJIC 17.03⁵  should have been given in place of CALJIC 8.74, "on the theory that the four separate counts with which he was charged were all based on the same criminal act." We need not consider this argument. There is no evidence in the record that this claim was raised in state proceedings, or that CALJIC 17.03 was requested at trial.⁶  In California, an appellant may not raise a failure of the trial court to give an unrequested instruction as grounds for reversal. See Cal.Penal Code Sec. 1259 (1982); People v. Weitz, 42 Cal. 2d 338, 267 P.2d 295, 300, cert. denied, 347 U.S. 993 (1954). Smith fails to show cause and prejudice for the procedural default, even assuming that the California rule made it pointless to attempt to exhaust the issue. See Wainwright v. Sykes, 433 U.S. 72 (1977); Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th Cir. 1983). Furthermore, the issue appears to have been raised tangentially, at best, before the district court, and we will not consider an issue not raised in the district court absent extraordinary circumstances.⁷  United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir. 1985).

The argument is utterly meritless in any case. "CALJIC No. 1703 ... is an instruction designed to be given only when the defendant cannot be legally convicted of more than one count because two or more counts are charged in the alternative." People v. Crowell, 198 Cal. App. 3d 1053, 244 Cal. Rptr. 296, 299 n. 8 (1988). Smith was accused of four separate crimes: Two murders and two assaults. See People v. Galvin, 148 Cal. App. 2d 285, 306 P.2d 575, 580 (1957). The proposed instruction, even if it had been requested at trial, would have been inapplicable as a matter of state law, and failure to give it assuredly did not render the trial fundamentally unfair. See Van Pilon, 799 F.2d at 1342; Miller v. Stagner, 757 F.2d 988, 993 (9th Cir.), amended, 768 F.2d 1090 (1985), cert. denied, 475 U.S. 1048 (1986).

IV

Smith's final claim is that he was denied the effective assistance of counsel because of his attorney's failure to produce certain evidence until after the trial. The California Court of Appeal described the evidence as follows:

A Mrs. Anderson was brought forward, who averred that she had seen a man she believed to be defendant on a bridge near the campground just before the attack with two other men, one of whom she now "felt" to be [Smith's acquaintance Everett] Richardson. Further, defendant's stepdaughter, Mrs. Plunkett, allegedly told an investigator that defendant and Richardson had jointly participated in killing a demon-possessed pet several months before the attack on the campers.

Smith, 108 Cal. Rptr. at 711. The state appellate court concluded that "reasonable diligence would have made both pieces of evidence available in time for the trial." Id. The state court did not make this finding in the context of a sixth amendment claim, and it does not bind us to a determination that Smith's counsel acted unreasonably. Cf. Strickland v. Washington, 466 U.S. 668, 698 (1984). Even assuming that reasonable diligence would have uncovered the evidence, it does not follow that the lack of diligence deprived Smith of the reasonable assistance of counsel.

The Supreme Court provided the standards for deciding an ineffectiveness of counsel claim in Strickland, 466 U.S. at 668. A convicted defendant must show that his counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. at 687. The test is that of "reasonably effective assistance," within the "wide range of reasonable professional assistance." Id. at 687, 689; see United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.), cert. denied, 474 U.S. 979 (1985); United States v. Schaflander, 743 F.2d 714 (9th Cir. 1984) (per curiam), cert. denied, 470 U.S. 1058 (1985).

Our review of the record does not reveal the serious professional errors that Strickland and our applications of it require. It is apparent that Smith was capably represented within the range of reasonable professional competence.

Even if we assume that failure to bring the evidence before the trial court constituted unreasonable professional error, that error does not rise to a denial of the right to effective assistance of counsel unless Smith was prejudiced in that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.... The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693, 694.

Smith makes no such showing here. Mrs. Anderson's statement places Smith at the crime scene in contradiction of his trial testimony. Smith's insinuation that this evidence shows Richardson's involvement in the attack is unsupported, irrelevent, and contradicted by the great weight of the evidence.

At the guilt trial the jury heard testimony over a period of eight days. The trial transcript occupies more than 1,400 pages. Witnesses testified to defendant's activities before and after the crime, supplied narrative accounts of the attack, described the physical condition of the victims and the physical evidence connecting defendant to the crime.

Smith, 108 Cal. Rptr. at 711. In addition, one of the victims identified Smith as his assailant. Id. at 704.

The evidence regarding the killing of an allegedly demon-possessed pet is relevant, of course, only to the jury's rejection of the insanity defense, not to the initial guilt phase of the trial. Here again, we are convinced that the evidence would not reasonably have changed the verdict. The jury heard extensive evidence on Smith's mental state before and at the time of the crime, including "evidence that at the time of the crime defendant had been distraught [sic] by religious fervor aroused by Richardson," and the testimony of two phychiatrists called by the defense that Smith suffered from substantial mental impairment. Id. The new evidence on the pet incident was merely cumulative, and the failure of Smith's attorney to offer it was not a sixth amendment violation.

CONCLUSION

An error in a jury instruction did not deprive Smith of due process. Issuance of CALJICs 8.74 and 17.49 instead of 17.03 was not a due process violation. Smith was not deprived of the effective assistance of counsel. We affirm the district court's denial of Smith's petition for a writ of habeas corpus.

AFFIRMED.