Sharon Altenhoff, Aka Sharon Neely, Petitioner-appellant, v. James Rowland, Director, Department of Corrections, State Ofcalifornia; John Van De Kamp, Attorney General Ofthe State of California, Respondents-appellees, 951 F.2d 358 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 951 F.2d 358 (9th Cir. 1991)

Submitted Dec. 2, 1991. *Decided Dec. 16, 1991


Before SCHROEDER and KOZINSKI, Circuit Judges, and HOGAN,**  District Judge.

MEMORANDUM*** 

Sharon Altenhoff appeals the dismissal of her writ of habeas corpus by the district court. Altenhoff was tried and convicted by a California state court jury on four counts of grand theft in violation of Cal.Penal Code § 487(1). She unsuccessfully appealed to the California State Court of Appeal and was denied a petition for review by the California Supreme Court. She sought a federal writ of habeas corpus which the district court dismissed based on the findings, conclusions, and recommendations of a U.S. Magistrate.

All of the appellant's convictions involved embezzlement of exotic birds left in her care while she owned an establishment known as the "Pampered Parrot." Appellant's principal contention on appeal is that the trial court erred fundamentally in failing to instruct the jury that, in order to convict her of grand theft, it must find that each of the counts involved property worth more than $400. Cal.Penal Code § 487(1). The appellant did not request such an instruction at trial. There was uncontradicted evidence from which the jury could find that the property in question had a value in excess of $400. The verdict signed by the jury described the property in each count and stated that the worth of the property in each count was in excess of $400.

The appellant raised this issue for the first time in her state court appeal. The state appellate court affirmed, holding that the trial court should have instructed on every element of the offense, but that the error was harmless. The state appellate court meticulously applied the standard set forth in Chapman v. California, 386 U.S. 18 (1967). We cannot fault its analysis.

AFFIRMED.

 *

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

 **

Honorable Michael R. Hogan, United States District Judge for the District of Oregon, sitting by designation

 ***

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 Circuit Rule 36-3