Appeal from the United States District Court for the Central District of California. D.C. No. CV-92-00726-JSL. J. Spencer Letts, District Judge, Presiding
Before: Pregerson, Brunetti, and Rymer, Circuit Judges.
Gerardo Ramirez Hernandez, a California state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 petition for habeas corpus. Hernandez contends that the jury was not instructed properly and that there was insufficient evidence of premeditation and deliberation to convict him of first degree murder. We have jurisdiction pursuant to 28 U.S.C. § 1291, and review de novo. Thomas v. Lewis, 945 F.2d 1119, 1122 (9th Cir. 1991). We affirm.
An allegedly improper jury instruction will merit habeas relief only if "the instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 112 S. Ct. 475, 482 (1991), (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)); Jeffries v. Blodgett, 988 F.2d 923, 938 (9th Cir. 1993). It is not sufficient for the petitioner to show that the instruction is erroneous; the petitioner must establish that there is a reasonable likelihood that the jury applied the instruction in a manner that violated a constitutional right. Carriger v. Lewis, 971 F.2d 329, 334 (9th Cir. 1992) (en banc), cert. denied, 113 S. Ct. 1600 (1993).
A. Voluntary Manslaughter Instruction
Hernandez contends that the trial court erred by withdrawing a previously-given instruction on voluntary manslaughter. Hernandez argues that even though he chose to rely on an alibi defense, there was sufficient evidence of provocation to warrant a voluntary manslaughter instruction.*fn1
The trial court instructed the jury prior to closing arguments, and gave a manslaughter instruction based on defense counsel's indication that he would argue a provocation theory to the jury. Defense counsel decided to limit his closing argument to attacking the eyewitness testimony against Hernandez and arguing an alibi defense. The trial court asked Hernandez if he understood that the jury would not be able to find him guilty of manslaughter if the instruction were withdrawn, and if his decision not to argue provocation was voluntary. Hernandez responded affirmatively. The trial court then instructed the jury to disregard the previously-given instruction.
In a non-capital case such as this one, a state court's failure to instruct the jury on a lesser included offense does not implicate the constitution unless the court's failure to give the requested instruction prevents the defendant from presenting his theory of the case. Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir.), cert. denied, 469 U.S. 838 (1984); James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976) (per curiam). Here, defense counsel declined to argue a provocation theory, and Hernandez consented to the withdrawal of the instruction. Because the trial court's withdrawal of the instruction did not prevent Hernandez from arguing his theory of the case, this issue is not cognizable in federal habeas corpus. See Bashor, 730 F.2d at 1240.
Hernandez contends that the trial court should not have instructed the jury that they could consider the defendant's flight as evidence of his guilt. The trial court gave CALJIC 2.52, which instructs the jury that a person's flight immediately after a crime is committed or after he is accused of committing a crime is not sufficient to establish guilt, but may be considered, along with other evidence, in determining guilt or innocence. There was evidence presented both that the perpetrator fled from the scene of the crime, and that Hernandez went to Mexico without taking any of his possessions on the day his girlfriend found out the police were looking for him. This evidence is sufficient to warrant a flight instruction. Further, because the jury was explicitly instructed that evidence of flight is not sufficient alone to prove guilt, Hernandez cannot show that the instruction was applied in a manner that violated his constitutional rights. See Carriger, 971 F.2d at 334. Accordingly, we find that this instruction did not violate Hernandez's due process rights. See Estelle, 112 S. Ct. at 482; Jeffries, 988 F.2d at 938.
c. Lying In Wait Instruction
Hernandez contends that there was insufficient evidence to warrant an instruction on lying in wait. He also argues that the trial court's oral instruction was incorrect, and impermissibly reduced the prosecution's burden of proof.
A murder perpetrated by lying in wait is an intentional murder committed in circumstances including "(1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage." People v. Hardy, 825 P.2d 781, 825 (Cal. 1992) (quoting People v. Morales, 770 P.2d 244 (Cal. 1989)), cert. denied, 113 S. Ct. 498 (1993). Premeditation and deliberation need not be separately proved to show that a murder committed by lying in wait is murder in the first ...