Lara v. Ryan

• Decision Date: 01 August 2006
• Docket Number: No. 05-16055.,05-16055.
• Citation: 455 F.3d 1080
• Parties: Anastacio LARA, Petitioner-Appellant, v. S. RYAN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

455 F.3d 1080

Anastacio LARA, Petitioner-Appellant, v. S. RYAN, Warden, Respondent-Appellee.

No. 05-16055.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 19, 2006.

Filed August 1, 2006.

Maitreya Badami, San Francisco, CA, for the petitioner-appellant.

Bill Lockyer, Robert R. Anderson, Gerald A. Engler, Peggy S. Ruffra, and David M. Baskind (argued), San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Charles R. Breyer, District Judge, Presiding. D.C. No. CV-04-01957-CRB.

Before: B. FLETCHER, KOZINSKI, and FISHER, Circuit Judges.

B. FLETCHER, Circuit Judge:

Appellant Anastacio Lara ("Lara") was convicted by a jury of two counts of attempted murder and two counts of nonaggravated mayhem. The jury was instructed that it could convict him of attempted murder under either a proper theory of express malice or an improper implied-malice theory. Lara brought a petition for habeas corpus under 28 U.S.C. § 2254, alleging that the flawed jury instruction made it impossible to determine whether he was convicted under the correct legal theory. The district court denied habeas relief, and we affirm.

I

The California Court of Appeal determined, and Lara does not challenge, the following summary of the facts:

[Lara], Evencio Varela, and Martin Ortiz were neighbors. One evening, [Lara] and several guests were socializing and drinking beer in [Lara's] front yard. Varela and Ortiz joined the group. At some point, [Lara] and Varela began arguing. [Lara] pushed Varela. Varela's wife interceded and pushed [Lara] away from Varela. [Lara] then announced that he was going inside to get his gun. Varela and Ortiz went across the street to their homes. But they eventually returned to [Lara's] yard and continued socializing. [Lara] appeared and approached Varela within two or three feet. Two of [Lara's] friends grabbed Varela, and [Lara] took out a gun. [Lara] aimed the gun at Varela's temple and shot Varela just as Varela was able to struggle and turn his head. The bullet broke Varela's cheekbone and destroyed Varela's right eye. Two people then grabbed Ortiz. [Lara] approached Ortiz and aimed the gun between Ortiz's eyes. He shot Ortiz twice just as Ortiz was able to struggle and turn his head. The first bullet went into Ortiz's mouth and destroyed his left eye. The second bullet went through Ortiz's chest and out Ortiz's back.

[Lara] testified and offered a self-defense scenario. According to [Lara], (1) Varela was drunk, insulting, and belligerent, (2) Varela assaulted him and left to get a gun after challenging him to a gunfight, (3) Varela returned and appeared to draw a gun, and (4) he pulled out his own gun in fear of his life and shot Varela and Ortiz. When asked whether his position was that he shot in self-defense, [Lara] answered, "exactly." When asked whether he was trying to kill the two, [Lara] answered, "No, I was trying to defend myself. I just didn't want to be bothered any more." [Lara's counsel] argued to the jury: "This is not a case of attempted manslaughter. I am not here asking for an attempted manslaughter verdict. This is simply a case of self-defense. The number one issue is self-defense. The number two issue is, did [Lara], in fact, even have the intent to kill? [Lara] didn't even empty the gun, he just waited until both men started to hit the ground and then he ran. He could have easily fired the last shot if he really wanted to do them in, if he really wanted to kill them. He did not empty the gun. He simply stopped shooting after they fell to the ground."

The trial court instructed the jury as to attempted murder in accordance with California Jury Instructions — Criminal ("CALJIC") No. 8.66, as follows:

Murder is the unlawful killing of a human being with malice aforethought. In order to prove attempted murder, each of the following elements must be proved: One, a direct but ineffectual act was done by one person towards killing another human being, and, two, the person committing the act harbored express malice aforethought, namely a specific intent to kill unlawfully another human being.

However, the trial court defined "malice aforethought" by instructing the jury under CALJIC No. 8.11, which includes both an express and implied theory. According to the trial court:

"Malice" may be either expressed or implied. Malice is express when there is manifested an intention unlawfully to kill a human being.

Malice is implied when one, the attempted killing resulted from an intentional act, two, the natural consequences of the act are dangerous to human life, and, three, the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.

When it is shown that an attempted killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.

The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person the accused attempted to kill.

The word "aforethought" does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.

The prosecutor relied upon the implied-malice instruction as well during closing argument:

Now malice is defined in another instruction as either being expressed or implied . . . . Malice can be expressed by someone saying I intend to kill you or writing something down, but in this case we're going to have to imply the defendant's intent at the time he committed the act.

There are three things that have to be proven for you to believe the defendant intended on killing either [Valera] or [Ortiz]. One, that it was an intentional act....

Second, that the natural consequences of that act are dangerous to life....

Then third, that the act was done deliberately with knowledge of the danger to and with conscious disregard for life....

That's all I have to prove, ladies and gentlemen, for you to believe that the defendant intended on killing. If you find those three elements are met, the defendant is guilty of attempted murder.

The jury convicted Lara of two counts of attempted murder and two counts of non-aggravated mayhem. It also made a separate factual finding that the attempted murders were willful, deliberate and premeditated and that Lara intentionally fired his gun. Lara received a sentence of 55 years to life.

Lara appealed his sentence to the California Court of Appeal, which affirmed the judgment. The State conceded, and the court agreed, that "the jury was given conflicting instructions on the mental state element of attempted murder." People v. Lara, No. H022525, 2002 WL 31667309, at *2 (Cal.Ct.App. Nov. 27, 2002). Nevertheless, the court upheld the conviction under the harmless-error standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The California Supreme Court denied review.

II

Lara filed a petition for writ of habeas corpus in federal district court.¹ The federal district court held that the Chapman harmless-error standard applied by the California Court of Appeal does not govern cases where "a jury delivers a general verdict that may rest on different theories, at least one of which is constitutionally invalid." In such cases, the district court held, the error is structural, and "reversal of the conviction is required unless the reviewing court can determine with `absolute certainty' that the jury did not ground their findings on a legally erroneous theory." Although the federal district court disagreed with the California Court of Appeal as to the applicable standard, it concluded that Lara's conviction nevertheless was "incompatible with an implied malice theory." It denied the habeas petition, and Lara filed a timely notice of appeal.²

III

This court exercises de novo review of a district court's order denying habeas relief. Landrigan v. Schriro, 441 F.3d 638, 642 (9th Cir.2006) (en banc). Because Lara filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d)(1). Under AEDPA, Lara is entitled to a writ if the state court's denial of his claim "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 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)(1), (2).³ A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1).

A state-court decision is "contrary to" clearly established Supreme Court precedent if the decision "contradicts the governing law set forth in our cases." Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state-court decision will constitute an "unreasonable application" of federal law "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407, 120 S.Ct. 1495. A federal habeas court may not issue the writ simply by concluding in its independent judgment that the state-court decision applied federal law incorrectly. Id. at 411, 120 S.Ct. 1495. "An `unreasonable application of federal law is different from an incorrect application of federal law.'" Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (citing Williams, 529 U.S. at 410, 120 S.Ct. 1495 (emphasis in original)).

IV

It is not disputed that the trial court improperly instructed the jury on the attempted-murder counts. The California Supreme Court made clear in People v. Lee, 43...