Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1988)

MEMORANDUM^* 

Petitioner Santiago Gonzalez was convicted of murder by a California court. After exhausting his state remedies, Gonzalez brought a petition for habeas corpus alleging that he had been denied effective assistance of counsel. The district court denied the petition on the ground that Gonzalez was not prejudiced by counsel's conduct at trial. Gonzalez now appeals the decision of the district court.

We affirm.

BACKGROUND

In July 1977, Santiago Gonzalez discovered that his wife, Susan, was having an affair with Jerry Gilson. On September 3, 1977, Gilson was found dead. Five days later, Gonzalez was arrested and charged with Gilson's murder.

Gonzalez was tried four times for Gilson's murder. At the first trial, the state requested and received jury instructions on the lesser included offense of manslaughter. The trial ended with a hung jury. Gonzalez's second trial was declared a mistrial. Prior to the third trial, Donald Buckman was appointed to represent Gonzalez. During trial, Buckman opposed jury instructions on manslaughter to preclude the possibility of a compromise conviction on the lesser offense. The third trial also ended with a hung jury. On October 17, 1978, the state dropped the murder charges against Gonzalez.

In 1981, Gonzalez made a series of inculpatory statements regarding the murder of Jerry Gilson. Gonzalez also made incriminating statements to his second wife in 1983.

In 1984, the state decided to reinstate the murder charges. Donald Buckman was reappointed to represent Gonzalez. Buckman and Gonzalez elected to advance a mistaken identity defense. At trial, Gonzalez asserted that his first wife, Susan, had killed Gilson. Gonzalez explained that Susan killed Gilson to save their marriage and that his subsequent incriminating statements were merely designed to draw attention away from Susan. Buckman neither presented evidence that Gonzalez acted in the heat of passion nor requested that the jury be instructed on the mitigating circumstance of heat of passion. After four days of deliberation, the jury convicted Gonzalez of second degree murder. Gonzalez appealed unsuccessfully to the California Court of Appeal and the California Supreme Court.

On September 30, 1987, Gonzalez filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of California. Gonzalez claimed that he was denied the effective assistance of counsel due to his trial counsel's failure to request jury instructions on the mitigating circumstance of heat of passion.¹  Although counsel had elected not to request jury instructions on heat of passion at the third trial, he had done so in order to prevent a compromise conviction for manslaughter. At the time of the fourth trial, however, the statute of limitations for manslaughter had expired--allegedly without the knowledge of counsel. Because Gonzalez could no longer be convicted of manslaughter, he maintained that there was no valid tactical purpose in not pursuing jury instructions on heat of passion. As a result, Gonzalez argued, counsel's failure to request jury instructions on heat of passion was prejudicial because it deprived him of an opportunity for acquittal on all charges if the jury believed that he acted in the heat of passion.

The district court denied Gonzalez's petition for habeas corpus on July 25, 1988. The district court held that even if counsel had requested a jury instruction on voluntary manslaughter, under Spaziano v. Florida, 468 U.S. 447 (1984), the trial court would have offered Gonzalez the option of either waiving the statute of limitations in return for receiving the instruction or of foregoing the instruction. In other words, Gonzalez would have had to waive the bar of the statute of limitations in order to receive a jury instruction on voluntary manslaughter. Therefore, the court reasoned, Gonzalez was not prejudiced by counsel's failure to request the instruction.

Gonzalez now appeals the district court's denial of his petition for habeas corpus.

STANDARD OF REVIEW

This court reviews a denial of a habeas corpus petition de novo to the extent that the facts are undisputed. Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1449 (9th Cir. 1986). In reviewing a district court's decision, this court may affirm on any basis finding support in the record. Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir. 1986).

DISCUSSION

A. The district court properly construed Gonzalez's habeas petition.

Gonzalez contends that the district court "completely misconstrued" his request for relief. The district court characterized Gonzalez's habeas petition as a claim that he was denied the effective assistance of counsel due to counsel's failure to request a jury instruction on the lesser included offense of manslaughter. Gonzalez states that he had actually sought relief on the grounds that his attorney's ineffectiveness lay in failing to request a jury instruction on heat of passion.

Gonzalez's "analysis" of his actual claim is as follows: Because heat of passion negates malice aforethought, an essential element of murder, had the jury found that Gonzalez acted in the heat of passion, he could not have been convicted of murder. Gonzalez argues that he would have been entitled to acquittal, not because the statute of limitations on manslaughter had expired, but rather because, if he acted in the heat of passion, that would have negated malice. Gonzalez claims that the fact that the statute of limitations had expired merely illustrates that there was no valid tactical reason for counsel's failure to request a heat of passion instruction.

Gonzalez appears to be arguing that heat of passion is an absolute defense to intentional homicide. This is simply not so. Under California law, an individual who kills intentionally while in the heat of passion is not absolved of all criminal liability. Rather, heat of passion negates the element of malice aforethought and reduces the crime from murder to manslaughter. See California Penal Code Sec. 192; California Jury Instructions, Criminal (CALJIC) Nos. 8.40-8.43. Because heat of passion is merely a circumstance which reduces a homicide to manslaughter, the district court properly construed Gonzalez's petition as a claim that counsel erred in failing to request jury instructions on the lesser included offense of manslaughter.² 

B. The district erroneously concluded that Gonzalez was not prejudiced.

The district court relied upon Spaziano v. Florida, 468 U.S. 447 (1984), in determining that Gonzalez was not prejudiced by counsel's failure to request jury instructions on voluntary manslaughter. In Spaziano, a murder defendant had requested that the jury be instructed on a lesser included offense for which the statute of limitations had expired. The trial judge agreed to instruct the jury on the lesser included offense on the condition that the defendant waive the statute of limitations defense. The defendant refused, and was convicted of first degree murder. In affirming the conviction, the Supreme Court held that the trial court's refusal to instruct the jury on an offense which is barred by the statute of limitations did not offend the Due Process Clause of the Constitution. The Court stated that " [r]equiring that the jury be instructed on lesser included offenses for which the defendant may not be convicted ... would simply introduce ... distortion into the factfinding process." Id. at 455-56.

The district court assumed that, under Spaziano, the trial judge would have required Gonzalez to waive the statute of limitations defense in order to receive a jury instruction on manslaughter. Although Spaziano does not prohibit a trial judge from refusing to instruct the jury on a lesser included offense unless the defendant agrees to waive the statute of limitations defense, it does not compel a judge to do so. Id. at 456. If Gonzalez's counsel had requested a jury instruction on voluntary manslaughter, Spaziano would not have required that the trial judge force Gonzalez to waive the statute of limitations defense. Because it is not clear whether the trial judge would have compelled Gonzalez to waive his statute of limitations defense for manslaughter, it is conceivable that Gonzalez might have been prejudiced by counsel's failure to request an instruction on manslaughter.³ 

C. Gonzalez was not denied the effective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel, a defendant must prove two components. First, a defendant must show that counsel's performance was so deficient that counsel "was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, the defendant must prove prejudice by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In reviewing a claim of ineffective assistance of counsel, a court "must indulge a strong presumption" that counsel's performance "falls within the wide range of reasonable professional assistance." Id. at 689. Moreover, the reasonableness of counsel's challenged conduct "is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).

In Butcher v. Marquez, 758 F.2d 373 (9th Cir. 1985), this court applied Strickland to hold that the defendant was not denied the effective assistance of counsel. In Butcher, the defendant claimed that his counsel's failure to request a voluntary manslaughter instruction amounted to ineffective assistance. Butcher had been convicted of assault with intent to commit murder for the shooting of his ex-wife and her lover. At trial, Butcher testified that he did not commit the shooting because he was in a bar at the time. Based upon Butcher's theory of defense, this court held that "counsel's strategic choice to forego an instruction for voluntary manslaughter was reasonable because counsel had good cause to believe that further efforts to obtain such an instruction would harm Butcher's case." Id. at 376.

The analysis employed in Butcher applies with equal force to the present case. Throughout trial, Gonzalez maintained his innocence by asserting that his wife, Susan, had killed Gilson. Had counsel simultaneously pursued a heat of passion theory, it is reasonable to assume that a jury would be less likely to believe that Gonzalez did not kill Gilson because heat of passion provides strong evidence of motive. Since Gonzalez would have been entitled to a voluntary manslaughter instruction only if the evidence at trial had shown that he could have acted in the heat of passion, his strategic decision to forego a heat of passion defense deprived him of any entitlement to jury instructions on manslaughter. Where, as here, counsel proceeds under a specific theory of defense, "counsel need not request instructions inconsistent with its trial theory." Id. at 377.⁴ 

Under Strickland and Butcher, Gonzalez has failed to establish that he was denied the effective assistance of counsel. During trial, Gonzalez and his counsel elected to advance the defense that he was not the person who shot the deceased, to the exclusion of other defenses. At the time, this strategy seemed to be a reasonable tactical decision. Although counsel's choice of defense was not successful, the mere fact of conviction is not sufficient to overcome the strong presumption that counsel's actions were sound trial strategy. Strickland, 466 U.S. at 689.

AFFIRMED.

O'SCANNLAIN, Circuit Judge, specially concurring:

I concur in the denial of the petition for habeas corpus.

I agree with petitioner that the district court misconstrued his request for relief. Petitioner's argument is that "heat of passion" negates the element of malice under California law, thereby precluding a conviction for murder. Thus, if the jury had been given an appropriate instruction and had concluded that Gonzalez acted under heat of passion, petitioner presumably would have been entitled to acquittal on the murder charge. The fact that he might have been criminally liable for manslaughter is irrelevant to this claim.

It seems clear to me that what the petitioner wanted was not a manslaughter instruction, but a heat of passion instruction. The court could have modified the manslaughter instruction or fashioned an entirely new instruction which informed the jury that Gonzalez could not be convicted of murder, the only crime with which he was charged, if it found that he had killed in the heat of passion.

Despite the district court's erroneous interpretation of petitioner's contention, I agree with the majority that Gonzalez was not denied the effective assistance of counsel simply because his counsel elected to rely on an entirely different defense. See Butcher v. Marquez, 758 F.2d 373 (9th Cir. 1985). Thus, on the merits I too would affirm.