Conde v. Henry

• Decision Date: 27 January 2000
• Docket Number: No. 98-56445,98-56445
• Citation: 198 F.3d 734
• Parties: (9th Cir. 1999) KIRK ANTHONY CONDE, Petitioner-Appellant, v. IRALEE HENRY, Warden; JAMES GOMEZ, Director of California Department of Corrections; BILL LOCKYER, <A HREF="#fr1-1" name="fn1-1">1 ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 734

198 F.3d 734 (9th Cir. 1999)

KIRK ANTHONY CONDE, Petitioner-Appellant, v. IRALEE HENRY, Warden; JAMES GOMEZ, Director of California Department of Corrections; BILL LOCKYER,¹ ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellees.

No. 98-56445

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted September 16, 1999

Filed December 3, 1999

As Amended January 27, 2000

[Copyrighted Material Omitted]

COUNSEL: Carol Lysaght, Santa Monica, California, for the petitioner-appellant.

Davis C. Cook, Deputy Attorney General, Los Angeles, California, for the respondents-appellees. ORDER

Appeal from the United States District Court for the Central District of California

Before: Betty B. Fletcher and Harry Pregerson, Circuit Judges, and Charles R. Weiner, ² District Judge.

OPINION

B. FLETCHER, Circuit Judge:

Kirk Anthony Conde appeals the denial of his petition for a writ of habeas corpus. He seeks a writ on the grounds that his California state court conviction for kidnapping for the purposes of robbery was the result of a constitutionally deficient trial. The trial court (1) precluded the defendant from arguing that the elements of a robbery had not been met; (2) denied the defendant's motion to instruct the jury on the defense theory of the case; and (3) modified California's model jury instructions in a manner that reduced the prosecution's burden of proof. This court has jurisdiction pursuant to 28 U.S.C. S 2253. We reverse the district court and conditionally grant the writ of habeas corpus.

FACTUAL BACKGROUND and PROCEDURAL HISTORY

The victim in this case, Margaret Schuss, was an assistant manager at a Sizzler restaurant. The petitioner, Conde, had previously worked at the restaurant. On June 13, 1988, after Schuss closed the Sizzler for the night, Conde and an accomplice followed her into the parking garage at her home. They accosted her in the garage, forced her back into her own car, and drove her away. After stopping at an unknown location to bind and blindfold Schuss, Conde demanded the restaurant's alarm code and safe combination, threatening to kill Schuss if anything went wrong. Schuss gave Conde the information, and Conde drove her for another 20-25 minutes, stopping the car at a second unknown location.

Conde left the car twice, the first time for 45 minutes, and the second time for 20-25 minutes. After returning a second time, Conde gave the victim her car keys and he left in another vehicle.

Approximately twelve thousand dollars was stolen from the restaurant safe on June 13, 1988. Petitioner Conde was convicted of kidnapping for robbery, residential burglary, and commercial burglary. He seeks a writ of habeas corpus challenging his conviction for kidnapping for robbery.

Trial Proceedings

At trial, Conde advanced two theories of defense: first, he claimed that the victim had misidentified him as the abductor; second, he claimed that the prosecution had failed to prove kidnapping for robbery, since it could not show that he intended to rob Schuss.

A robbery is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Cal. Penal Code S 211 (West 1999). It is undisputed that the only property taken was money from the restaurant safe. The parties disagree over whether Conde intended to take the money from the Sizzler in the immediate presence of Schuss.

Under California law, "a thing is in the immediate presence of a person, in respect to a robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it." People v. Hayes, 52 Cal. 3d 577, 626-27 (1991) (citing, inter alia, Commonwealth v. Homer, 235 Mass. 526, 533 (Mass. 1920)). As an example of a taking by force or fear that would not be from a victim's immediate presence, Hayes offers the following:

A person might enter the victim's home and there, by the use of force or fear, compel the victim to reveal the combination of a safe located many miles away in the victim's office. The culprit at the vic tim's house could then relay the combination to a confederate waiting in or near the office, who could use it to open the safe and take its contents before the victim could reach the office or otherwise inter fere with the taking. In such a case, the criminals would have accomplished the taking by force or fear, and yet not have taken property from the person or immediate presence of the victim.

Id. at 627. This is, in essence, what Conde argues occurred.

At the conclusion of the prosecution's case, the trial court granted Conde's motion for acquittal on robbery and on kidnapping for extortion. In dismissing the robbery charge, the court stated that "I don't see a scintilla of evidence that there was an intent to take anything from [the victim]. The whole intent was to get her to go back to the Sizzler so that the suspects could get the money from the safe, not to take anything from her." It appears from the record that the trial court did not consider whether taking money from the Sizzler constituted a robbery of Schuss.

Conde then moved for acquittal on the charge of kidnapping for robbery, arguing that the kidnapping had been undertaken for burglary of the Sizzler restaurant and not for robbery of Schuss.

The court rejected this theory outright, and denied the motion. After reaffirming that Schuss had not been robbed, the court stated that "the robbery is from the Sizzler." This statement indicates that the trial judge may have confused robbery, which requires a taking from a person or her immediate presence, with commercial burglary, which may include taking from a restaurant.

Both the prosecutor and defense counsel agreed that the court should instruct the jury on the lesser included offense of simple kidnapping. The trial judge, however, refused to instruct on simple kidnapping because "in this case there is either a kidnapping for robbery or there was nothing. There was no other intent for the kidnapping. There was nothing else it could have been." Defense counsel objected. After a later colloquy on the issue during which the defense counsel argued that this was a kidnapping for the purposes of burglary, not robbery, the judge replied, "I don't think so . . . If we are wrong, we are wrong."

Defense counsel, requesting clarification, asked whether the defense would "be precluded from arguing that there was no robbery since it was not from her person nor under her control." The judge answered in the affirmative that "it would be wrong to argue that."

Consistent with its belief that the victim had been kidnapped for robbery of the Sizzler, the trial court modified the specific intent element of the California pattern jury instructions for kidnapping for robbery by inserting the following emphasized language:

In order to prove [kidnapping to commit robbery], each of the following elements must be proved:

One, a person who is moved by the use of physical force.

Two, the movement of such person was caused with the specific intent to rob that person of money over which she had control, and the person causing such movement had such specific intent to rob when the movement commenced.

Three, the movement of such person was without that person's consent . . .

The judge rationalized this change as necessary to inform jurors that kidnapping Schuss "to rob Sizzler . .. is all right." The defense objected to the modification.

On June 22, 1989, the jury found Conde guilty of kidnapping for robbery, residential burglary, and commercial burglary. The trial court sentenced Conde to life imprisonment on the kidnapping for robbery count and to two additional years for use of a firearm. He was sentenced on the two burglary counts to four and two years. The burglary sentences were suspended pending service of the life sentence.

Habeas Proceedings

Conde originally filed a petition for writ of habeas corpus on September 14, 1992. The district court ordered petitioner to exhaust state court remedies and held the matter open for a reasonable period. Petitioner exhausted state court remedies and filed a First Amended Petition on October 13, 1994. On September 29, 1995, the Magistrate Judge, to whom the case had been assigned for a report and recommendation, recommended that the court issue an order directing that judgment be entered granting a conditional writ of habeas corpus. On July 9, 1998, the district court denied the habeas petition.

On August 5, 1998, the district court issued a certificate of appealability that indicated that the specific issue to be addressed was "[w]hether the jury instructions were constitutionally deficient in describing the elements of the crime." The respondents contend that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") limits our review to the issue specified in the certificate of appealability. See 28 U.S.C. S 2253(c)(1)(A). We hold, however, that AEDPA's restriction does not apply where, as here, the original petition was filed before the effective date of AEDPA³ but the notice of appeal from the denial of the petition was filed after the effective date. See Fuller v. Roe, 182 F.3d 699, 702-03 (9th Cir. 1999).

DISCUSSION

This court reviews de novo a district court's decision to deny a S 2254 habeas petition. See Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir. 1998). We find that the district court erred, and we conditionally grant the writ of habeas corpus.

Limitation on Closing Argument

The trial court violated Conde's right to counsel by precluding his attorney from arguing his theory of the defense in closing arguments, namely that the prosecution failed to prove a robbery or an intent to rob. The error was compounded by the prosecutor's closing argument, which contended that Conde did commit a robbery and therefore he did intend...