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Suniga v. Bunnell

*fn* submitted san francisco california: May 12, 1993.

ALEX HUERTA SUNIGA, PETITIONER-APPELLANT,
v.
R. J. BUNNELL, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-89-00639-OWW J. Oliver W. Wanger, District Judge, Presiding. {Counsel}{Q}Counsel{/Q}{/Counsel}

Ann Hargrove Voris, Assistant Federal Public Defender, Fresno, California, for the petitioner-appellant.

Robert D. Marshall, Deputy Attorney General, Sacramento, California, for the defendant-appellee.

Before: Cecil F. Poole, Warren J. Ferguson, and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Fernandez.

Author: Fernandez

AMENDED OPINION AND ORDER

FERNANDEZ, Circuit Judge:

Alex Huerta Suniga appeals the district court's denial of his petition for habeas corpus relief. He argues that his conviction violated due process standards because of instructional errors by the state trial court. We agree in part and reverse the district court's denial of his petition.

BACKGROUND

Suniga killed Carlos Guantes after a day of partying and, it seems, brooding. On the day of the killing, Suniga, his wife Eleanor Suniga and Guantes attended a party at the beach. Alcohol was consumed there. At about 4:00 in the afternoon they all returned to the apartment complex in which they lived. Suniga and his neighbor, Jesse Caldera, soon left together on Suniga's motorcycle in order to pick up Caldera's motorcycle. On the way Suniga told Caldera that he suspected that someone - it turned out he meant Guantes - was "messing with" their wives. They picked up Caldera's bike, stopped at a bar, drank some more beer, and then left for the apartment complex.

Suniga arrived at the apartment alone. His wife and several others, including Guantes, were drinking in the apartment of Caldera's wife, Letitia Zuniga. Zuniga saw Suniga arrive and warned Eleanor that he looked angry. Eleanor told her daughter to call the police. She then accompanied her husband to their own apartment. On the way there, they began arguing. Suniga got his shotgun from the apartment and then, in view of the neighbors, struck his wife in the back of her head with the butt of the gun. After that, he fired a shot at her or in her general direction and called out, "Have your great boyfriend come out here if he's man enough."

Guantes (unarmed, but carrying a beer can) ran out toward Suniga, who was loading the shotgun. The two struggled over the gun and Guantes was shot in the chest at close range. Suniga then pointed the gun at his fallen opponent and said to Eleanor, "Do you want me to shoot him in the head?" The shot would have been unnecessary; Guantes died almost immediately from loss of blood.

The police came and arrested Suniga. While he was being booked, he was asked for his correct address. He responded, "I live where I killed that . . . punk. I shot him. I hope he dies. He deserves to die for messing around with my wife."

Suniga was ultimately charged with murder on the theory that he killed Guantes with malice aforethought. At trial, he claimed that the killing was not intentional because the gun accidentally discharged while he was struggling with Guantes. There was evidence that Suniga was under the influence of alcohol. There was also some evidence that Suniga told Guantes to stay away.

While the theory of the prosecution was that this killing was committed with malice aforethought, the jury was instructed on that theory as well as on felony-murder. It is the felony-murder aspect of the instruction that presents the issue with which we must grapple. The court instructed the jury as follows:

The defendant is charged in Count I of the Information with the commission of the crime of murder, a violation of Section 187 of the Penal Code. The crime of murder is the unlawful killing of a human being with malice aforethought or the unlawful killing of a human being which occurs during a commission or attempt to commit a felony inherently dangerous to human life. In order to prove the commission of the crime of murder, each of the following elements must be proved: Number one, that a human being was killed; two, that the killing was unlawful; and three, that the ...


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