Unpublished Disposition, 909 F.2d 1488 (9th Cir. 1989)

MEMORANDUM^* 

Francisco Javier Guizar was convicted of aiding and abetting first degree murder. Following unsuccessful direct and collateral attacks on his conviction in the California state courts, Guizar filed a petition for a writ of habeas corpus in federal district court. The district court denied the writ and dismissed the petition in a published opinion, Guizar v. Estelle, 640 F. Supp. 1146 (S.D. Cal. 1986), but we held on appeal that Guizar's failure to exhaust available state court remedies as to one of the issues raised in his petition required a remand for further proceedings. Guizar v. Estelle, 843 F.2d 371 (9th Cir. 1988) (per curiam). Guizar elected to pursue his unexhausted habeas claim in the state courts, where it was denied by the Supreme Court of California on September 28, 1988. Guizar then refiled his habeas petition with the district court, which again denied the requested relief on April 20, 1989.

Guizar argues on appeal that the state trial court erred by admitting his confession into evidence and failing to instruct the jury properly on the element of intent. We review de novo, see Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.

The California Court of Appeal found, based on the record of an evidentiary hearing conducted prior to Guizar's trial, that the appellant (1) was read his Miranda rights before his initial questioning and unrecorded confession; (2) recited his Miranda rights almost verbatim following this first confession; (3) conceded prior to making his second confession that he had been read his Miranda rights on at least five earlier occasions; and (4) read and signed a waiver form written in both Spanish and English before giving his second, recorded confession. These findings are entitled to a presumption of correctness, see 28 U.S.C. § 2254(d); Hamilton v. Vasquez, 882 F.2d 1469, 1470 (9th Cir. 1989), and the conclusion drawn therefrom, viz., that Guizar's confession was knowingly, voluntarily, and intelligently made, is not overcome by taking out of context Guizar's statement that "I could have an attorney right now if you guys think I need one." Cf. Duckworth v. Eagen, 492 U.S. ---, ----, 109 S. Ct. 2875, 2880 (1989) (neither initial nor second confession of defendant inadmissible where essence of Miranda rights adequately conveyed prior to questioning). There was no error on this point.

The appellant's second argument is that the state trial court's improper instruction on the question of intent constituted reversible error because it eliminated the prosecution's burden of proof on that issue. We disagree.

Due process requires the State to prove beyond a reasonable doubt each and every element of a charged offense. In re Winship, 397 U.S. 358, 364 (1970). Instructions which permit a jury to presume an element of a charged offense to be true may constitute a violation of due process. Sandstrom v. Montana, 442 U.S. 510, 523 (1979). Nevertheless, when

the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury ... the erroneous instruction is simply superfluous: the jury has found, in Winship's words, "every fact necessary" to establish every element of the offense beyond a reasonable doubt.

Carella v. California, 491 U.S. ---, ----, 109 S. Ct. 2419, 2421 (1989) (per curiam) (quoting Rose v. Clark, 478 U.S. 570, 580-81 (1986)) (emphasis in original). Cf. United States v. Belgard, 894 F.2d 1092, 1095 (9th Cir. 1990) (affirming direct appeal where, citing Carella, " [a]ny error in the instructions was simply harmless error given the facts of this case").

The evidence of the predicate acts in this case, summarized in the district court's original opinion, 640 F. Supp. at 1152-53, shows that Guizar clearly knew what actions were planned by his co-defendants and that he acted with full knowledge of their unlawful purpose. See Watts v. Bonneville, 879 F.2d 685, 688-89 (9th Cir. 1989). The evidence of his intent is so overwhelming that no rational jury could have found that Guizar did not intend to commit, encourage, or facilitate the commission of the underlying offense. See, id.; People v. Beeman, 35 Cal. 3d 547, 560, 674 P.2d 1318, 1325, 199 Cal. Rptr. 60, 68 (1984). Accordingly, there was no error on this point, either.

AFFIRMED.