Masoner v. Thurman

• Citation: 996 F.2d 1003
• Decision Date: 24 June 1993
• Docket Number: No. 92-55116,92-55116
• Parties: James B. MASONER, Petitioner-Appellant, v. Otis THURMAN, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1003

996 F.2d 1003

James B. MASONER, Petitioner-Appellant, v. Otis THURMAN, Warden, Respondent-Appellee.

No. 92-55116.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 4, 1993.

Decided June 24, 1993.

Philip A. Rafferty, Long Beach, CA, for petitioner-appellant.

Elaine F. Tumonis, Deputy Atty. Gen., Los Angeles, CA, for respondent-appellee.

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

Before: WALLACE, Chief Judge, and SNEED and HALL, Circuit Judges.

WALLACE, Chief Judge:

Masoner, a California state prisoner, appeals from the district court's order denying his petition for a writ of habeas corpus. The district court exercised jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 2253. We affirm.

I

On March 4, 1987, Masoner attended a cocktail party where he consumed alcoholic beverages. As he prepared to leave the party, Masoner's associates advised him that he was in no condition to drive. Despite resistance from Masoner, his associates, Monnin and Barber, accompanied Masoner home; Masoner rode with Barber while Monnin drove Masoner's car. Masoner was uncooperative and somewhat incoherent. After extensive searching, the men located Masoner's house on a cul-de-sac at the top of a hill. When Monnin got out of Masoner's car, Masoner entered it and began to drive out of the cul-de-sac down the hill. Barber and Monnin followed in Barber's car. Masoner drove to the bottom of the hill, failed to negotiate a curve in the road, and crashed through a house, killing four-year-old Jessica Shaner and injuring other occupants. A subsequent blood test indicated that at the time of the crash Masoner's blood alcohol level was .26%.

Following a jury trial, Masoner was convicted of second-degree murder, Cal.Penal Code § 187(a), gross vehicular manslaughter while intoxicated, Cal.Penal Code § 191.5, driving under the influence causing injury, Cal.Veh.Code § 23153(a), and driving with a blood alcohol level of .10% or greater causing injury, Cal.Veh.Code § 23153(b). After exhausting state remedies, Masoner filed a petition for a writ of habeas corpus, which the district court considered on the merits and dismissed with prejudice.

Masoner raises three issues on appeal. The first concerns the propriety, under the due process clause of the Fourteenth Amendment, of his being convicted of both murder and manslaughter. The second and third concern the validity of the trial court's jury instructions.

The district court's decision to deny Masoner's petition for habeas corpus is reviewed de novo. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991).

II

Masoner contends that the district court erred in denying his petition for a writ of habeas corpus because the jury's finding Masoner guilty of both manslaughter and murder was an inconsistent verdict that violated his right to due process of law guaranteed by the Fourteenth Amendment. This argument presents a question of law which we review de novo.

The jury's verdict on Count II found Masoner "guilty of the crime of GROSS VEHICULAR MANSLAUGHTER WHILE INTOXICATED, ... in that the said defendant did unlawfully kill Jessica Shaner, a human being, without malice aforethought, in the driving of a vehicle." The trial court had instructed the jury: "The crime of manslaughter is the unlawful killing of a human being without malice aforethought." This instruction, however, was read as part of the lesser included offense instructions for the second-degree murder charge in Count I. The instructions on Count II never mentioned malice. The charge to the jury on Count II stated "[t]he crime of gross vehicular manslaughter while intoxicated is the unintentional but unlawful killing of a human being in the driving of a vehicle where the driving is in violation of Section 23152 or section 23153 of the Vehicle Code, and the killing was the proximate result of the commission of a lawful act which might produce death in a grossly negligent manner." The jury also convicted Masoner on Count I of second-degree murder. California law defines murder as "the unlawful killing of a human being ... with malice aforethought." Cal.Pen.Code § 187. Masoner argues that the verdicts under Counts I and II are unconstitutionally inconsistent, apparently on the theory that his conviction of manslaughter ("killing ... without malice") constitutes an acquittal of murder ("killing ... with malice").

The general rule is that jury verdicts on multiple counts are insulated from review on the ground that they are inconsistent. United States v. Powell, 469 U.S. 57, 68-69, 105 S.Ct. 471, 479, 83 L.Ed.2d 461 (1984); United States v. Hart, 963 F.2d 1278, 1281 (9th Cir.1992). But this rule was developed in response to a situation in which a defendant logically could be guilty of two counts or neither, and the jury convicts on only one. It is inapplicable to the situation, alleged by Masoner to exist here, where a defendant logically could be guilty of either one count or the other, but not both, and the jury convicts of both. The Supreme Court recognized this distinction in Powell. See 469 U.S. at 69 n. 8, 105 S.Ct. at 479 n. 8 ("Nothing in this opinion is intended to decide the proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilt on the other.").

We stated but did not hold in United States v. Duz-Mor Diagnostic Laboratory, Inc., 650 F.2d 223, 226 n. 3 (9th Cir.1981), that although an inconsistent jury verdict on multiple counts is not ordinarily grounds for reversal, it may be considered where a defendant is convicted of mutually exclusive offenses, such that the defendant could have been guilty of one or the other, but not both. However, when jury verdicts are not necessarily inconsistent, we need not consider whether inconsistency would mandate reversal. United States v. Menna, 451 F.2d 982, 984 (9th Cir.1971), cert. denied, 405 U.S. 963, 92 S.Ct. 1170, 31 L.Ed.2d 238 (1972).

We hold that a due process challenge to a jury verdict on the ground that convictions of multiple counts are inconsistent with one another will not be considered if the defendant cannot demonstrate that the challenged verdicts are necessarily logically inconsistent. If based on the evidence presented to the jury any rational fact finder could have found a consistent set of facts supporting both convictions, due process does not require that the convictions be vacated.

Masoner's argument presumes that in order to convict him of manslaughter, the jury necessarily found that he acted "nonmaliciously." The jury instructions on Count II, however, never referred to malice. The trial court did not list "absence of malice" as an element of the crime of gross vehicular manslaughter while intoxicated, and in reaching its verdict on that count, the jury need never have considered the issue of malice. On the other hand, the jury necessarily found beyond a reasonable doubt that Masoner acted with malice in order to reject the lesser included offense and convict him of second-degree murder on Count I. The conviction on Count II cannot reasonably be understood as an acquittal of the Count I charge.

When faced with cases in which defendants have been convicted of both murder and manslaughter, state appellate courts have often focused on the jury instructions to determine whether the jury necessarily reached incompatible conclusions regarding a defendant's mental state. Compare State v. Moore, 458 N.W.2d 90, 93-94 (Minn.1990) (vacating convictions for first-degree murder and manslaughter because, as instructed, jury necessarily found that defendant's act was both intentional and reckless, mental states court determined to be mutually exclusive), and People v. Hoffer, 106 Ill.2d 186, 88 Ill.Dec. 20, 23-25, 478 N.E.2d 335, 338-40 (vacating convictions for murder and voluntary manslaughter because, as instructed, jury necessarily found that defendant simultaneously had mutually exclusive beliefs regarding justifiability of conduct), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985), with State v. Barsness, 473 N.W.2d 325, 327-28 (Minn.App.1991) (affirming convictions of second-degree murder and manslaughter where instructions permitted jury to conclude that although defendant believed her actions would result in death, defendant had not formed purpose or design to cause death), and People v. Deacon, 130 Ill.App.3d 280, 85 Ill.Dec. 549, 554-56, 473 N.E.2d 1354, 1359-60 (affirming convictions of murder and involuntary manslaughter where instructions permitted jury to convict defendant of both counts without finding any element of either offense both to exist and not to exist, and mental states described in jury instructions were not mutually exclusive), cert. denied, 474 U.S. 921, 106 S.Ct. 253, 88 L.Ed.2d 260 (1985). In the present case, the instructions did not require the jury to make necessarily inconsistent findings in order to convict Masoner of both second-degree murder and gross vehicular manslaughter while intoxicated.

Part of the confusion in Masoner's argument stems from an implicit, and incorrect, assumption that California's crime of gross vehicular manslaughter while intoxicated is indistinguishable from generic manslaughter. The trial court's jury instructions on the two offenses make it clear that they are very different. As a lesser included offense of second-degree murder, the jury was instructed it could convict Masoner of manslaughter if it found that he acted "without malice aforethought." The charge to the jury on the offense of Count II, however, stated that "[t]he crime of gross vehicular manslaughter while intoxicated is the unintentional but unlawful killing of a human being in the driving of a vehicle where the driving is in violation of Section 23152 or Section 23153 of the Vehicle Code, and the...