909 F.2d 1234 (9th Cir. 1989), 87-15022, Sheppard v. Rees

Docket Nº:87-15022.
Citation:909 F.2d 1234
Party Name:Irving SHEPPARD, Petitioner-Appellant, v. Robert REES, Respondent-Appellee.
Case Date:August 25, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1234

909 F.2d 1234 (9th Cir. 1989)

Irving SHEPPARD, Petitioner-Appellant,


Robert REES, Respondent-Appellee.

No. 87-15022.

United States Court of Appeals, Ninth Circuit

August 25, 1989

Submitted June 9, 1989[*]

As Amended on Denial of Rehearing

July 6, 1990.

Rehearing En Banc Denied

July 6, 1990.

Irving Sheppard, Tracy, Cal., pro se.

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Mary A. Roth, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before FARRIS, THOMPSON and TROTT, Circuit Judges.


The opinion filed in this case on August 25, 1989 and published in the advance sheets at 883 F.2d 795-801 (1989) is ordered amended in its entirety as reflected by the Amended Opinion filed this date. With the opinion so amended, the panel has voted unanimously to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the Amended Opinion and the suggestion for en banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35(b).

The petition for rehearing is denied, and the suggestion for rehearing en banc is rejected.


TROTT, Circuit Judge:

Irving Sheppard, a California state prisoner, appeals pro se the district court's order dismissing his petition for a writ of habeas corpus. He claims, inter alia, he did not receive adequate notice to enable him to prepare a proper defense to a charge of felony-murder. We agree. We hold further that a violation of the Sixth Amendment right to be informed of the nature and cause of the accusation is not subject to the harmless-error rule where the violation arises from the constitutionally improper use of one of multiple legal theories of culpability culminating in a general verdict of guilty. Finally, we reverse the district court and order that the writ of habeas corpus issue. We do not reach appellant's other claims.



In an information filed on April 20, 1981, Sheppard was charged with one count of murder under California Penal Code section 187, and with use of a firearm. He was arraigned and pleaded not guilty. The case was tried before a jury on the theory that the killing was premeditated and deliberate, precipitated by an alleged "debt" from a cocaine transaction Sheppard felt was owed to him by the decedent. At no time during pretrial proceedings, opening statements, or the taking of testimony was the concept of felony-murder raised, directly or indirectly.

On July 22, 1981, both the prosecution and defense rested. Each side then submitted and argued their requested jury instructions to the court. Again, there was no mention by the prosecutor of felony-murder. The instructions were apparently settled, and the matters of final arguments and charging the jury were continued to the following day.

On the next morning, the prosecution, for the first time, requested that instructions on robbery and felony-murder be given in conjunction with those on first-degree murder. Defense counsel immediately objected to the State's request:

I object strenuously to the giving of any instructions based on any theory of first degree murder on the felony-murder theory. I would indicate that we went over instructions yesterday morning and no mention was ever made of any theory of felony-murder justification for a first degree murder verdict by the jury. It wasn't until this morning that Mrs. Nedde gave us or made the request of the Court to give the instructions that the Court has just indicated.

... It never occurred to me that the People would ever go forward on a theory of felony-murder,....

I would note that at no time has a robbery ever been charged in this case. It was never charged in the Municipal Court; there was no holding on that issue by the magistrate at the end of the

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preliminary hearing. There was no robbery charge ever filed in Superior Court in an Information. Mrs. Nedde has filed several amended Informations that never included a robbery charge. And suddenly, after we've already gone over all the instructions, we've gone home and prepared our arguments, the time comes to argue the case, Mrs. Nedde is submitting a felony-murder theory.

Nevertheless, the trial court instructed the jury on a felony-murder theory, and the prosecution argued that theory to the jury during closing argument.

The jury then convicted Sheppard of first-degree murder with the use of a firearm, rendering a general verdict without indicating the legal theory on which it relied. Sheppard's conviction was affirmed on direct appeal. The California Supreme Court denied his petition for habeas relief. The district court also denied Sheppard's petition. We review that denial de novo. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987).



A. Sixth Amendment

Sheppard contends that the jury instruction on felony-murder violated his Sixth Amendment right to be notified of the charges against him. The Sixth Amendment guarantees a criminal defendant a fundamental right to be clearly informed of the nature and cause of the charges in order to permit adequate preparation of a defense. 1 See Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); see also Gray v. Raines, 662 F.2d 569, 571 (9th Cir.1981) ("A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense--a right to his day in court--are basic in our system of jurisprudence...." (quoting In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948))). Because neither felony-murder nor the underlying charge of robbery was listed in the information, Sheppard argues he did not receive adequate notice to enable him to prepare a proper defense to the theory of felony-murder. 2

The State of California originally took the position in this court that Sheppard's Sixth Amendment right to be informed of the nature and cause of the accusation against him had not been violated. The State argued that the general allegation of murder in the primary charging document was constitutionally sufficient in itself to put the defendant on notice that he may have to defend against a charge of felony-murder. In a published opinion, we disagreed. The State sought a rehearing, now conceding that "in the circumstances of this case," "petitioner was denied adequate notice and opportunity to prepare to defend against a charge of felony-murder." California explains its current position as follows:

Hence, the difficulty in this case arises not because California's murder pleading practice furnishes inadequate notice, but because a pattern of government conduct affirmatively misled the defendant, denying him an effective opportunity to prepare a defense. 'The defendant was ambushed.'

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(emphasis added) (citations omitted) (quoting...

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