Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1985)

MEMORANDUM^* 

Mario Sagasta, a prisoner in state custody, appeals the district court's denial of his petition for habeas corpus. Sagasta asserts that the state trial court committed Sandstrom error by giving the standard California jury instruction on "confessions," rather than the appropriate instruction on "admissions." We affirm the district court.

FACTS

At Sagasta's state court trial, the principal evidence of the underlying events was Sagasta's own testimony and previous statement to the police. For convenience, we describe the facts leading up to Sagasta's trial largely as described by Sagasta himself; the only facts actually relevant to our disposition on the merits are those concerning the conduct of the trial itself.

On January 26, 1985, Sagasta purchased what he thought was heroin from Larry Guzman Torres. He paid Torres $23 for a balloon which turned out to contain powdered aspirin instead of heroin. Later that day, after discovering the fraud, Sagasta located Torres and decided to confront him. Sagasta armed himself with a lettuce knife and caught up with Torres. An argument over the money ensued. Sagasta noticed Torres eyeing a piece of metal nearby and, worried that Torres, a much larger man than he, would pick it up to use against him, he took the lettuce knife out of his pocket. Torres advanced towards Sagasta; Sagasta stabbed him twice. Torres stopped advancing and asked Sagasta not to stab him anymore. Sagasta stopped and Torres ran away. A short time later, the police found Torres lying in a doorway. He was still alive but died at the hospital from two chest wounds.

After Sagasta learned of Torres's death, he turned himself in to the police. He gave a statement in which he admitted to stabbing Torres, but denied intent, instead claiming self-defense. Sagasta was tried in state court for murder. At trial, the only real factual issue was Sagasta's intent: whether he killed with malice aforethought or in self-defense. The jury found him guilty of second-degree murder. He was sentenced to state prison for a total of sixteen years.

The California Court of Appeal affirmed Sagasta's conviction, and the California Supreme Court denied his petition for review. Sagasta then filed a petition for writ of habeas corpus in federal district court. The district court denied the petition and issued a certificate of probable cause to appeal. We have jurisdiction of the appeal under 28 U.S.C. § 1291.

STANDARD OF REVIEW

Whether the state court's jury instructions denied Sagasta due process of law is a purely legal question, which this court reviews de novo. Willard v. People of State of California, 812 F.2d 461, 462 (9th Cir. 1987). If an error is of constitutional dimensions, whether it is harmless is a mixed question of law and fact, also reviewed de novo. Herd v. Kincheloe, 800 F.2d 1526, 1528 (9th Cir. 1986). Allegedly erroneous jury instructions are reviewed in the context of the whole charge and the whole trial. Knaubert v. Goldsmith, 791 F.2d 722, 725 (9th Cir.), cert. denied, 479 U.S. 867 (1986).

DISCUSSION

Sagasta asserts he was denied due process by the following instruction:

A confession is a statement made by a defendant other than at his trial in which he has acknowledged his guilt of the crime for which he is on trial. In order to constitute a confession, such a statement must acknowledge participation in the crime as well as the required criminal intent.

You are the exclusive judges as to whether the defendant made a confession, and if so, whether such statement is true in whole or part.

If you should find that the defendant did not make the statement, you must reject it. If you find that it is true in whole or in part, you may consider that part which you find to be true.

Evidence of an oral confession of the defendant should be viewed with caution.

R.T. II at 414-415.

The district court found, and the appellee concedes, that the instruction on the elements of confession should not have been given, since it is undisputed that Sagasta's statement, claiming self-defense, did not "acknowledge ... the required criminal intent," i.e., malice aforethought. The appropriate instruction would have been the "admission" instruction, CALJIC 2.71, which is identical to the "confession" instruction except for the first paragraph:

An admission is a statement made by a defendant other than at his trial which does not by itself acknowledge his guilt of the crime for which he is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence.

Although the jury instruction was clearly error, habeas relief is only appropriate where "the ailing instruction by itself 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); see also Prantil v. State of California, 843 F.2d 314, 318 (9th Cir. 1988) (inapplicable instruction on aiding and abetting does not merit habeas relief "if the deficiencies pertain to matters that are not in dispute and the error did not so affect the entire trial as to deprive the defendant of due process"), cert. denied, 109 S. Ct. 158 (1988).¹  The due process violation which Sagasta asserts is that the instruction "ha [d] the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime." Francis v. Franklin, 471 U.S. 307, 313 (1985); Sandstrom v. Montana, 442 U.S. 510, 520-24 (1979).

Whether a defendant has been accorded his constitutional right to have every element of the offense proven beyond a reasonable doubt depends on the way in which a reasonable juror could have interpreted the instruction. Sandstrom, 442 U.S. 510, 514. Sandstrom error occurs when a jury instruction could be interpreted by a reasonable juror to create "a mandatory presumption of intent upon proof by the State of other elements of the offense." Francis, 471 U.S. at 313.

Sagasta asserts that the trial court effectively characterized his pretrial statement as a confession, and thus effectively instructed the jury to presume intent. No reasonable juror could interpret the instruction that way. The instruction specifically required the jury to determine for themselves whether Sagasta confessed, and required for this determination that they find that the statement acknowledged the required criminal intent. They were further instructed to view any evidence of a confession with caution, and to consider only that part which they found to be true.

Any reasonable juror applying this instruction could only find that Sagasta's pretrial statement did not satisfy the definition of a confession, since the evidence was uncontroverted that the statement did not acknowledge the required criminal intent. Having so found, any reasonable juror would treat the instruction as a nullity. The mere fact that an unreasonable juror might have misinterpreted the instruction as a statement by the court that Sagasta did confess is not constitutional error: the same risk is present in equal measure with perfectly correct instructions. See McKenzie v. Risley, 842 F.2d 1525, 1533 (9th Cir. 1988) (en banc), cert. denied, 109 S. Ct. 250 (1988).

An examination of the entire trial and instructions supports this conclusion. The jury was repeatedly made aware during the trial that Sagasta's intent was the principal issue in the case, and was repeatedly instructed by counsel and the court that they must find the requisite intent beyond a reasonable doubt. See, e.g., R.T. II at 410-11 (court's instructions); 376, 400 (prosecution's closing arguments); 385, 387, 389, 390 (defense counsel's closing argument). The prosecution never argued that Sagasta's statement to the police admitted intent.

CONCLUSION

We conclude that the state trial court did not commit constitutional error in giving the "confession" instruction. The district court's denial of Sagasta's habeas corpus petition is therefore AFFIRMED. Sagasta's request to appoint counsel on remand under Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987), is denied as moot.

AFFIRMED.