Suniga v. Bunnell

• Decision Date: 12 May 1993
• Docket Number: No. 92-15204,92-15204
• Citation: 998 F.2d 664
• Parties: Alex Huerta SUNIGA, Petitioner-Appellant, v. R.J. BUNNELL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 664

998 F.2d 664

Alex Huerta SUNIGA, Petitioner-Appellant, v. R.J. BUNNELL, Defendant-Appellee.

No. 92-15204.

United States Court of Appeals, Ninth Circuit.

Submitted May 12, 1993 ^*.

Decided July 2, 1993.

Amended Aug. 5, 1993.

Ann Hardgrove Voris, Asst. Federal Public Defender, Fresno, CA, for petitioner-appellant.

Robert D. Marshall, Deputy Atty. Gen., Sacramento, CA, for defendant-appellee.

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

Before: POOLE, FERGUSON, and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Alex Huerta Suniga appeals the district court's denial of his petition for habeas corpus relief. He argues that his conviction violated due process standards because of instructional errors by the state trial court. We agree in part and reverse the district court's denial of his petition.

BACKGROUND

Suniga killed Carlos Guantes after a day of partying and, it seems, brooding. On the day of the killing, Suniga, his wife Eleanor Suniga and Guantes attended a party at the beach. Alcohol was consumed there. At about 4:00 in the afternoon they all returned to the apartment complex in which they lived. Suniga and his neighbor, Jesse Caldera, soon left together on Suniga's motorcycle in order to pick up Caldera's motorcycle. On the way Suniga told Caldera that he suspected that someone--it turned out he meant Guantes--was "messing with" their wives. They picked up Caldera's bike, stopped at a bar, drank some more beer, and then left for the apartment complex.

Suniga arrived at the apartment alone. His wife and several others, including Guantes, were drinking in the apartment of Caldera's wife, Letitia Zuniga. Zuniga saw Suniga arrive and warned Eleanor that he looked angry. Eleanor told her daughter to call the police. She then accompanied her husband to their own apartment. On the way there, they began arguing. Suniga got his shotgun from the apartment and then, in view of the neighbors, struck his wife in the back of her head with the butt of the gun. After that, he fired a shot at her or in her general direction and called out, "Have your great boyfriend come out here if he's man enough."

Guantes (unarmed, but carrying a beer can) ran out toward Suniga, who was loading the shotgun. The two struggled over the The police came and arrested Suniga. While he was being booked, he was asked for his correct address. He responded, "I live where I killed that ... punk. I shot him. I hope he dies. He deserves to die for messing around with my wife."

                gun and Guantes was shot in the chest at close range.   Suniga then pointed the gun at his fallen opponent and said to Eleanor, "Do you want me to shoot him in the head?"   The shot would have been unnecessary;  Guantes died almost immediately from loss of blood
                

Suniga was ultimately charged with murder on the theory that he killed Guantes with malice aforethought. At trial, he claimed that the killing was not intentional because the gun accidentally discharged while he was struggling with Guantes. There was evidence that Suniga was under the influence of alcohol. There was also some evidence that Suniga told Guantes to stay away.

While the theory of the prosecution was that this killing was committed with malice aforethought, the jury was instructed on that theory as well as on felony-murder. It is the felony-murder aspect of the instruction that presents the issue with which we must grapple. The court instructed the jury as follows:

The defendant is charged in Count I of the Information with the commission of the crime of murder, a violation of Section 187 of the Penal Code. The crime of murder is the unlawful killing of a human being with malice aforethought or the unlawful killing of a human being which occurs during a commission or attempt to commit a felony inherently dangerous to human life. In order to prove the commission of the crime of murder, each of the following elements must be proved: Number one, that a human being was killed; two, that the killing was unlawful; and three, that the killing was done with malice aforethought or occurred during the commission of or attempt to commit a felony inherently dangerous to human life.

An assault with deadly weapon is a felony inherently dangerous to human life.

The court then instructed on the definition of malice, including implied malice. ¹ It gave a further definition of second degree murder and of manslaughter and then went on to instruct:

If a person while committing a felony inherently dangerous to human life causes another's death, the crime is murder. If while committing a misdemeanor inherently dangerous to human life he causes another's death, he's guilty of manslaughter. There are many acts which are lawful, [but] nevertheless, endanger human life.

Suniga contends that these instructions resulted in a trial so unfair that his conviction violated the Constitution. That the trial court erred is indisputable. What we must decide is the effect of that error.

STANDARD OF REVIEW

The question of the ultimate standard of review to be applied in this habeas corpus case is one of some concern. Of course, it is a given that we review the grant or denial of a habeas corpus petition by the district court de novo. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991). That, however, does not conclude our inquiry into the standard under which we consider the instructional error claim in this case. The error was made in a state court trial, and we cannot grant habeas corpus based upon mere state law errors. See Estelle v. McGuire, --- U.S. ----, ----, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). When it comes to instructional errors, the Supreme Court has made it clear that:

The only question for us is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." (" '[I]t must be established not merely that the instruction is undesirable, erroneous, or even "universally condemned," but that it violated some [constitutional right]' "). It is well established Id. at ----, 112 S.Ct. at 482 (citations and footnote omitted); see also Prantil v. California, 843 F.2d 314, 317 (9th Cir.), cert. denied, 488 U.S. 861, 109 S.Ct. 158, 102 L.Ed.2d 129 (1988).

                that the instruction "may not be judged in artificial isolation," but must be considered in the context of the instructions as a whole and the trial record.   In addition, in reviewing an ambiguous instruction ... we inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.   And we also bear in mind our previous admonition that we "have defined the category of infractions that violate 'fundamental fairness' very narrowly."
                

If the instructional error does meet the violation of due process standard, we must still ask whether a further error analysis is required. In a habeas corpus case involving trial error which violates a constitutional norm, we must ordinarily go on and decide whether that error was harmless. That is, we must ask whether it " 'had substantial and injurious effect or influence in determining the jury's verdict.' " Brecht v. Abrahmson, --- U.S. ----, ----, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (citation omitted). If it did not, habeas corpus relief is not available.

However, that standard seems a bit redundant in the case of an instructional error which has already been found to be of a kind that has infected the proceeding to the point that due process has been denied. Furthermore, at least some instructional errors are so serious that they amount to structural defects, " 'which defy analysis by "harmless-error" standards.' " Id. at ----, 113 S.Ct. at 1717 (citation omitted). An example of that kind of error occurs when a jury is instructed in a way that allows proof of an element of a crime on a standard less demanding than beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 524-27, 99 S.Ct. 2450, 2459-60, 61 L.Ed.2d 39 (1979). Another example of a structural error occurs when the court allows the defense to be ambushed with an instruction that changes the theory of the case at the last minute. Sheppard v. Rees, 909 F.2d 1234, 1237-38 (9th Cir.1989). At least for errors of that type the harmless-error standard of Brecht certainly does not apply. Rather, automatic reversal is required. Id.

We recognize that in this case the California Court of Appeal found that the instructional error was harmless beyond a reasonable doubt. However, that determination does not bind us. Rather, harmlessness is a mixed question of fact and law which we review de novo. See Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir.1987). Again, if harmless error analysis is applied, our review will require Suniga to meet the more stringent habeas corpus standard.

Finally, the record indicates that Suniga did not object to the challenged instruction at the trial court. It is even possible that he participated in requesting the instruction, at least in a general way. He first challenged the instruction on appeal. Nevertheless, the California Court of Appeal considered the challenge, as did the district court. The state has never asserted that a procedural default occurred. Thus, we will consider the challenge on its merits. See Panther v. Hames, 991 F.2d 576, 582 (9th Cir.1993) (per curiam).

DISCUSSION

The prosecution never did rely upon a felony-murder theory in this case. It did not argue that theory to the jury; it relied upon malice to support a conviction. Thus, when the trial court instructed on felony-murder it interjected an issue that had not previously been part of the case. That is not all. The particular felony-murder theory on which the court instructed does not even exist. In California, there cannot be a second degree murder based upon the theory that a death occurred during the perpetration of an assault with a deadly weapon (ADW)...