Sarausad v. Porter

• Decision Date: 07 March 2007
• Docket Number: No. 05-35192.,No. 05-35062.,05-35062.,05-35192.
• Citation: 479 F.3d 671
• Parties: Cesar SARAUSAD, Petitioner-Appellee, v. Carol PORTER, Respondent-Appellant. Cesar Sarausad, Petitioner-Appellee, v. Carol Porter, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

479 F.3d 671

Cesar SARAUSAD, Petitioner-Appellee, v. Carol PORTER, Respondent-Appellant.

Cesar Sarausad, Petitioner-Appellee, v. Carol Porter, Respondent-Appellant.

No. 05-35062.

No. 05-35192.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 15, 2005.

Filed March 7, 2007.

John J. Samson, Office of the Washington Attorney General, Olympia, WA, for the respondent-appellant.

Patricia S. Novotny, and David B. Zuckerman, Seattle, WA, for the petitioner-appellee.

Appeals from the United States District Court for the Western District of Washington John C. Coughenour, Chief Judge, Presiding. D.C. No. CV-02-02547-JCC.

Before REINHARDT, W. FLETCHER, and BYBEE, Circuit Judges.

Opinion by Judge William A. Fletcher; Partial Concurrence and Partial Dissent by Judge Reinhardt; Dissent by Judge Bybee

WILLIAM A. FLETCHER, Circuit Judge.

Petitioner Cesar Sarausad brings a petition for habeas corpus under 28 U.S.C. § 2254, challenging his second-degree murder and two attempted second-degree murder convictions. We hold that the evidence was sufficient to support the convictions under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, based on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), we hold that ambiguous jury instructions on accomplice liability, in combination with other factors, unconstitutionally relieved the State of its burden of proof of an element of the crimes with which Sarausad was charged.

I. General Background

Sarausad is a naturalized citizen who immigrated as a child from the Philippines. At the time of the events in question, Sarausad was a 19-year-old student at the University of Washington in Seattle. He had recently graduated from Ingraham High School in Seattle. While still in high school, Sarausad had tutored other minority students in mathematics. Sarausad had become friends with some of his tutees and had eventually joined their gang, the 23rd Street Diablos ("the Diablos").

On the morning of March 23, 1994, Sarausad picked up three of his friends, Gerard Abad, Levi Arakelyan, and Lucas Gosho. These three were either Diablo members or associates. The four then drove in Sarausad's car to the Pink Pantry convenience store where they met Jerome Reyes, Gaurav Nayar, Brian Ronquillo, Michael Marckx, and Rocky Galbay, also members or associates of the Diablos. Reyes told the group that he had recently been chased from Ballard High School by members of another gang, the Bad Side Posse ("the BSP"). The group decided to go to Ballard to confront the BSP.

The group first went to Shorewood High School, across the street from the Pink Pantry, to see if another member of the Diablos, Michael Vicencio, would join them. Vicencio told them that he would meet them later at the 7-Eleven. The group then went, without Vicencio, to Ballard High School in Sarasaud's and Nayar's cars. Sarausad's car was in the lead. They drove past an area of the school where BSP members were thought to be, shouting insults, showing gang signs, and waving bandanas. They came back a few minutes later and stopped their cars near a group of six to ten students. They got out of the cars, and a yelling and pushing match ensued. After a short time, someone yelled that the police were there. The group got back into the cars and left. As they drove away, some of the Ballard students yelled that they were "weak."

The group then went to Nayar's house, but Sarausad, Abad, and Reyes went to the 7-Eleven to get Vicencio. Vicencio followed Sarausad back to Nayar's house in his car. Before Vicencio entered the house, Ronquillo met him outside and asked for Vicencio's gun. Vicencio gave the gun to Ronquillo. There is no evidence that Sarausad was present when Ronquillo asked for and was given the gun. At Nayar's house the group listened to music, danced, and initiated a new member into the gang. They left when Nayar told them that his mother would be coming home soon.

The group got into two cars, this time Sarausad's and Vicencio's. Though he was carrying Vicencio's gun, Ronquillo rode in Sarausad's rather than Vicencio's car. Sarausad stopped his car a few blocks away from Ballard High School, and Vicencio pulled up beside him. There was a brief conversation between the people in the two cars. They then continued on to the school with Sarausad leading, as he had done on the first trip.

Melissa Fernandes, Ryan Lam, and Tam Nguyen were standing outside the school. As he approached, Sarausad slowed down to perhaps five miles per hour and drove closer to the curb. As Sarausad slowed the car, Ronquillo fired between four and ten shots from the front passenger seat. Lam and Nguyen dropped to the ground and were unharmed. Melissa Fernandes was hit. She died the next day at the hospital. Brent Mason, a student who had just stepped out of shop class, was struck in the leg by a bullet fragment. Sarausad and Vicencio both drove away rapidly, with Sarausad's car still in the lead.

After leaving the school, the two cars stopped and Ronquillo transferred Vicencio's gun to Vicencio's car. Then Sarausad and Vicencio both drove to the Northgate mall. Sarausad left the others at the mall and went home. The gun used in the murder was later destroyed by other members of the group.

The State prosecuted Ronquillo (the shooter), Sarausad (the driver), and Reyes (a passenger in the back seat of Sarausad's car). The State offered plea agreements and lenient treatment to others in the group on the condition that they testify against Ronquillo, Sarausad, and Reyes.

All three defendants were charged with one count of first-degree murder, two counts of attempted first-degree murder, and one count of second-degree assault. The theory of the State's case against Sarausad and Reyes was that they were accomplices, and were therefore guilty of murder despite not having fired any shots. The only seriously contested issue at 2556 Sarausad's trial was whether he had the requisite knowledge to be an accomplice to murder. At the time of his trial, it was unclear under Washington law whether an accomplice had to have knowledge that the principal merely intended to commit a crime, or whether the accomplice had to know that the principal intended to commit the particular crime in question.

Ronquillo was convicted on all counts as charged. Sarausad was convicted of the lesser-included crimes of one count of second-degree murder and two counts of attempted second-degree murder, and of one count of second-degree assault. The jury hung, and a mistrial was declared, as to Reyes.

Sarausad's counsel moved for a new trial. In a declaration in support of the motion, Sarausad's counsel stated that during a post-verdict interview, jurors stated that the jury had been confused about what was required to prove accomplice liability. The court denied the motion. Sarausad's counsel then moved for reconsideration, attaching declarations in which two jurors stated that the jury had been confused about accomplice liability. The court denied the motion for reconsideration. Sarausad was then sentenced to more than 27 years in state prison.

Sarausad's convictions were affirmed on direct appeal by the Washington Court of Appeals. State v. Ronquillo, 1998 WL 87641, at *9 (Wash.Ct.App. Mar.2, 1998). The Washington Supreme Court denied review. State v. Ronquillo, 136 Wash.2d 1018, 966 P.2d 1277 (1998). Sarausad then sought collateral review through a personal restraint petition ("PRP") in the Washington Court of Appeals. The Court of Appeals denied relief, see Sarausad v. State, 109 Wash.App. 824, 39 P.3d 308 (2001), and the Washington Supreme Court denied review.

Sarausad then sought a writ of habeas corpus in federal district court under 28 U.S.C. § 2254, challenging his second-degree murder and two attempted second-degree murder convictions. He did not challenge his second-degree assault conviction. In a thorough Report and Recommendation the magistrate judge recommended that Sarausad's habeas petition be granted on two grounds—first, that there was insufficient evidence to convict Sarausad, and, second, that the jury instructions, in combination with other factors, unconstitutionally relieved the State of—its burden of proof. The district court agreed with the magistrate judge's recommendation on both grounds and granted the writ subject to the State's election to retry Sarausad.

The State appeals. Sarausad cross-appeals, contending, inter alia, that the district court erred in holding that double jeopardy does not bar retrial after reversal of a conviction for insufficient evidence. Sarausad's release has been stayed pending appeal.

We reverse the decision of the district court on the sufficiency-of-the-evidence ground. However, we affirm on the ground that the State was improperly relieved of its burden of proof. We need not reach Sarausad's claims on cross-appeal.

II. Standard of Review

We review de novo the district court's decision to grant a habeas petition under 28 U.S.C. § 2254. Ramirez v. Castro, 365 F.3d 755, 762 (9th Cir.2004) (as amended). Because Sarausad filed his petition after April 16, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir.2004). AEDPA provides that a federal habeas court shall not grant a writ of habeas corpus from a state court unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Section 2254(d)(1)...