Roy v. Gomez

• Decision Date: 15 April 1996
• Docket Number: No. 94-15994,94-15994
• Citation: 81 F.3d 863
• Parties: 96 Cal. Daily Op. Serv. 2633, 96 Daily Journal D.A.R. 4337 Kenneth Duane ROY, Petitioner-Appellant, v. James GOMEZ; John Van De Kamp; and William Merkle, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 863

81 F.3d 863

96 Cal. Daily Op. Serv. 2633, 96 Daily Journal

D.A.R. 4337

Kenneth Duane ROY, Petitioner-Appellant, v. James GOMEZ; John Van De Kamp; and William Merkle, et al Respondents-Appellees.

No. 94-15994.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 30, 1995.

Decided April 15, 1996.

Wallace, Circuit Judge, filed dissenting opinion, which Cynthia Holcomb Hall and Rymer, Circuit Judges, joined.

Appeal from the United States District Court for the Eastern District of California, No. CV-89-01643-DFL; David F. Levi, District Judge, Presiding.

Hill C. Snellings, Blackmon & Drozd, Sacramento, California, for petitioner-appellant.

Margaret Venturi, Supervising Deputy Attorney General, Sacramento, California, for respondents-appellees.

Before: HUG, Chief Judge, BROWNING, WALLACE, FLETCHER, PREGERSON, POOLE, REINHARDT, HALL, THOMPSON, RYMER, and T.G. NELSON, Circuit Judges.

BROWNING, Circuit Judge:

This is an appeal from the denial of a petition for habeas corpus. Petitioner Kenneth Duane Roy challenges his state court convictions of robbery and first-degree murder for aiding and abetting a felony murder. He contends the state trial court erred by failing to instruct the jury on the specific intent that is a necessary element of aiding and abetting under California law. The district court agreed, but held the error harmless. A divided panel of this court affirmed. We granted en banc review, and now reverse.

I.

A.

Petitioner Kenneth Duane Roy and his friend Jesse McHargue met Archie Mannix and James Clark outside a liquor store in Gridley, California. The four began drinking beer. Several hours later, a Gridley police officer saw Mannix's truck narrowly miss a utility pole as it backed up in the store's parking lot. The officer stopped the truck and called another officer to assist. Mannix and Clark were both intoxicated. McHargue and Roy appeared to be sober, but neither had a driver's license. The officers told the men not to drive the truck and left. Two hours later, the truck was gone. The officers found it nose down in a ditch, with the bodies of Clark and Mannix nearby. Both had been stabbed. Mannix, whose body was partially submerged in the ditch, had drowned. Both were partially stripped and their pockets turned out. Mannix's wallet and papers were scattered on the ground. The officers located Roy and McHargue at a nearby restaurant, their clothes wet and muddy. Each was carrying a buck knife. Each had some of Mannix's property in his possession. Roy told police the killings occurred after McHargue lost control of the truck while making a turn, the truck went into the ditch, and Clark became angry and struck Roy. According to Roy, a fight ensued, Roy against Clark and McHargue against Mannix. Roy stabbed Clark and killed him.

Roy was charged with two counts of murder and two counts of robbery. At trial Marie Smart testified she was driving home when she saw the truck in the ditch and stopped to offer assistance. Two men were standing over Mannix, who was lying on the ground and appeared to be hurt. McHargue told her help had been summoned. A pathologist testified that Mannix's fatal stab wound could have been made by either McHargue's or Roy's knife. Roy's knife bore traces of blood that could have come from either Roy or Mannix but not from Clark.

William Hudspeth, a jailhouse informant, testified Roy told Hudspeth that Roy and McHargue planned to take Clark and Mannix to the country, rob and kill them, and steal the pickup truck. McHargue had trouble subduing Mannix and Roy came to McHargue's aid, pulling Mannix away, stabbing Mannix and holding his head under water until he was dead. According to Hudspeth, Roy and McHargue then took the truck and drove back toward Gridley.

Another jailhouse informant, Sidney Hall, testified Roy told him that after the truck went into the ditch, Clark hit Roy with a stick. A fight followed, and Roy stabbed Clark. Roy saw McHargue was "getting the worst of it" in his fight with Mannix, and "went over to help" McHargue.

The state took the murder case to the jury on two theories, arguing Roy was guilty of first-degree murder (1) because the killings were premeditated and (2) because they were committed during the course of a felony, the robbery of Clark and Mannix. The jury found Roy guilty of second-degree murder of Clark and made a "special circumstance" finding, for purposes of sentencing, that Roy had used a knife to kill Clark. The jury acquitted Roy of robbing Clark. The jury found Roy guilty of robbery and first-degree murder of Mannix, with a "special circumstance" finding that Roy had not used a knife to kill Mannix. Roy challenges his convictions of robbery and first-degree murder of Mannix.

B.

The jury's decision to convict Roy of second-degree murder of Clark indicates the jury rejected the state's theory that the defendants planned the crime. The jury also rejected the state's contention that Roy stabbed Mannix by finding Roy did not use a knife against Mannix. Thus Roy's conviction of first-degree murder of Mannix necessarily reflected a conclusion by the jury that Roy was guilty of felony murder of Mannix in the course of aiding and abetting the robbery of Mannix by McHargue.

The jury was given an aiding and abetting instruction which stated that "[a] person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime." This instruction allowed the jury to convict Roy if he provided "knowing aid"-that is, if he knew of McHargue's intention to rob Mannix and took some action that had the effect of furthering the robbery. After Roy's case was tried, the California Supreme Court held in People v. Beeman, 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318 (1984), that an instruction identical to the one given in Roy's case was flawed because an aiding and abetting conviction requires proof not merely of "knowing aid" but also that the defendant intended to encourage or facilitate the offense with which the principal was charged. ¹

On direct appeal, Roy contended the state trial court erred by failing to instruct the jury on the specific intent element of aiding and abetting identified in Beeman. The California court of appeal concluded error had occurred but was harmless beyond a reasonable doubt. The California Supreme Court denied relief on collateral review, and Roy then filed this federal habeas petition raising the Beeman issue. In denying the petition, the district court held the omission from the instruction of the specific intent requirement was error, but agreed with the state courts that the error was harmless beyond a reasonable doubt because "[n]o rational juror could find that Roy aided McHargue, knowing what McHargue's purpose was, without also finding that Roy intended to aid McHargue in his purpose." A divided panel of this court affirmed. Roy v. Gomez, 55 F.3d 1483 (9th Cir.1995).

II.

We have held that omission of the specific intent element from jury instructions in the trial of a charge of aiding and abetting under California law deprives the defendant of his constitutional right to have a jury find the existence of each element of the charged offense beyond a reasonable doubt. Martinez v. Borg, 937 F.2d 422, 423 (9th Cir.1991); see In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970) (due process requires proof beyond a reasonable doubt of all elements of the charged offense). We also held in Martinez that Beeman error is subject to harmless-error analysis. Martinez, 937 F.2d at 425. The panel agreed on both points. Roy, 55 F.3d at 1485-86. The panel divided, however, as to whether the error was harmless.

A.

To determine whether the Beeman error was harmless, we apply the analysis developed by Justice Scalia in his concurring opinion in Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989). See Martinez, 937 F.2d at 425. ²

Carella involved a conclusive presumption that relieved the state of its burden of proof with regard to the intent element of embezzlement. Justice Scalia explained that use of such a presumption could be harmless only in the "rare situations" when the reviewing court could be confident that the error played no part in the jury's verdict. Carella, 491 U.S. at 270, 109 S.Ct. at 2423 (Scalia, J., concurring) (quoting Connecticut v. Johnson, 460 U.S. 73, 87, 103 S.Ct. 969, 977, 74 L.Ed.2d 823 (1983)). Stated shortly, such an error is harmless under Carella only if no rational jury could find the predicate facts forming the basis for the presumption without also finding the presumed fact. Carella, 491 U.S. at 271, 109 S.Ct. at 2423 (Scalia, J., concurring). In applying Carella to an instruction omitting an element of the offense, we have treated the omitted element as the "presumed fact" and considered whether a rational jury could have found the remaining elements of the offense without also finding the omitted element. Martinez, 937 F.2d at 424; see also United States v. Parmelee, 42 F.3d 387, 393 (7th Cir.1994).

Pointing to our recent en banc decision in United States v. Gaudin, Roy argues we may no longer apply harmless error analysis to Beeman error. In Gaudin, the district court instructed the jury that an element of the crime was established as a matter of law. We held that "such an error cannot be harmless." United States v. Gaudin, 28 F.3d 943, 951 (9th Cir.1994) (en banc) ("When proof of an element has been completely removed from the jury's determination, there can be no inquiry into what evidence the jury considered to establish that element because the jury was precluded from considering whether the element existed at all."), aff'd, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Relying on this language, some subsequent panel decisions have held omission of...