Unpublished Disposition, 889 F.2d 1094 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1094 (9th Cir. 1989)

Daniel DELCINO, Petitioner-Appellant,v.Daniel VASQUEZ, Warden, San Quentin Prison, Respondent-Appellee.

No. 86-2380.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 3, 1989.* Decided Nov. 24, 1989.

Before GOODWIN, SCHROEDER and BEEZER, Circuit Judges.


MEMORANDUM** 

Petitioner is currently incarcerated at San Quentin Prison under sentence imposed upon conviction of four counts of rape, one count of attempted sodomy by force, three counts of oral copulation, and one count of false imprisonment. He brought a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming constitutional violations in the conduct of his trial. He has exhausted all state remedies.

Petitioner alleges that his due process rights were violated by the trial judge's failure to give the jury a limiting instruction on the use of an un-Mirandized statement made by the petitioner at the time of his arrest. Without giving petitioner his Miranda rights, an officer asked Delcino if he had been at a certain bar on the night in which the rape occurred. Petitioner lied and said that he had not. At trial, petitioner testified in his own defense. The trial judge failed to instruct the jury that it could consider petitioner's false denial for impeachment purposes only. Instead, the trial judge instructed the jury that it could consider the false statement as showing consciousness of guilt. The government concedes that the trial judge's instructions on the use of the false denial were erroneous. Petitioner charges that the trial judge committed reversible error.

The evidence introduced at trial indicates that petitioner met the victim at a bar on the night in which the alleged rape took place. He made several advances towards her, all of which she rejected. When the victim left the bar, petitioner followed her in his car. The victim attempted to "lose" him by pulling into a friend's driveway. Petitioner blocked her exit and forced his way into her car, whereupon he forced her to commit various sexual acts for two and a half hours. Petitioner's defense was consent.

The district court denied Delcino's habeas corpus petition on the grounds that the trial court's jury instruction, though erroneous, was harmless beyond a reasonable doubt as required to prevent reversal under Chapman v. California, 386 U.S. 18 (1967). In deciding whether the trial court's erroneous jury instruction constituted a harmless error under Chapman, this court must look to the weight of the remaining evidence in support of Delcino's conviction. Hinman v. McCarthy, 676 F.2d 343, 350 (9th Cir.), cert. denied, 459 U.S. 1048 (1982).

The weight of the evidence against Delcino demonstrates that the jury would have found him guilty despite the erroneous jury instruction. First, Delcino's statement was a lie about where he had been; it was not a confession. Hence, its principal relevance to the jury went to credibility or lack thereof, not to guilt or innocence. Second, Delcino's credibility had already been damaged by evidence of a prior felony conviction. Third, on direct examination petitioner explained his denial to the jury. Petitioner told the jury that he had lied to the officer because he wished to conceal his interaction with the victim as she was married and might be subject to reprisal from her husband. Fourth, the victim's lack of consent was supported by evidence of dents in her car door and abrasions on her body. Fifth, witnesses present at the bar testified that petitioner behaved hostilely towards the victim and made offensive advances towards her. Sixth, a friend of the victim testified that the victim was extremely distraught immediately following the incident. Finally, the jury heard extensive and detailed testimony by the victim herself as to defendant's actions.

The evidence indicates beyond a reasonable doubt that the jury would have convicted petitioner even if the trial judge had given the required limiting instruction and had omitted the improper consciousness of guilt instruction. The district court's denial of petitioner's petition for writ of habeas corpus is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 9th Cir.Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.Rule 36-3