Tapia v. Roe

• Decision Date: 10 May 1999
• Docket Number: No. 97-15295,97-15295
• Citation: 189 F.3d 1052
• Parties: (9th Cir. 1999) JOHN ROBERT TAPIA, Petitioner-Appellant, v. ERNEST C. ROE, Warden, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1052

189 F.3d 1052 (9th Cir. 1999)

JOHN ROBERT TAPIA, Petitioner-Appellant, v. ERNEST C. ROE, Warden, Respondent-Appellee.

No. 97-15295

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 10, 1999--San Francisco, California

Decided August 31, 1999

[Copyrighted Material Omitted]

Donald Thomas Bergerson, San Francisco, California, for the petitioner-appellant.

Catherine A. Rivlin, Deputy Attorney General, San Francisco, California, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Maxine M. Chesney, District Judge, Presiding. D.C. No. CV-95-00607-MMC.

Before: Donald P. Lay,¹ Harry Pregerson, and Michael Daly Hawkins, Circuit Judges.

HAWKINS, Circuit Judge:

John Robert Tapia ("Tapia"), convicted in California state court of premeditated murder and second degree murder and serving a sentence of life without parole, appeals from the district court's denial of his petition for a writ of habeas corpus. We are asked to decide whether the giving of an erroneous aiding and abetting instruction, not reviewed for error on direct appeal in state court, is subject to review under the standard of Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), or Chapman v. California, 386 U.S. 18, 24 (1967). Because we conclude that no harmful error could have occurred under the application of either standard, we affirm.

FACTS

The facts of this case could have come from the pages of an Elmore Leonard novel, or a Quentin Tarantino screenplay. Tapia was a middleman in the illegal drug trade, making his living buying drugs from Joseph Domino ("Domino") and reselling them to others, including Marcus West ("West") -- who lived with Tapia -- for street sale.

West became an addict and fell into debt to both Tapia and Domino. West was also in debt to Greg Hammed ("Hammed"), whom he had persuaded to invest in an unsuccessful methamphetamine laboratory. West was acquainted with Louis Reyes ("Reyes"), who made his living robbing drug dealers. West, hoping to pay off his debts, wanted Reyes to involve both himself and Hammed in these "rip-offs." Reyes suggested they rob West's "connection," not knowing that West's supplier of drugs was Tapia. West apparently did not agree to the plan, but Hammed -- who also did not know Tapia was West's connection -- later spoke with West about it, in front of Tapia. Tapia, angry and mistrustful, took West to the home of Bill Baker ("Baker") where West was held captive for approximately one week and interrogated by Tapia and Domino. Tapia then decided that Reyes had to be confronted. Tapia and Domino had West call Reyes, and inform him that West's connection had left an ounce of raw heroin in a motor home parked in front of a house, which could be easily stolen.

Tapia then had Hammed and West drive Reyes to the motor home. Reyes was armed with a .22 caliber pistol. Michael Hernandez ("Hernandez") accompanied Reyes as his backup. Baker, on Tapia's instructions, followed secretly, prepared to shoot West and Reyes (and presumably Hernandez) if Hammed signaled that there was trouble. Domino hid in the house, Tapia in the bushes.

When the trio of West, Reyes, and Hammed arrived, Hammed, followed by Baker and West, entered the house. West later testified he then heard two shots; Hammed that he heard Tapia say "halt" or "freeze" and then three shots. Neighbors testified that one or two voices were heard saying "did you shoot him?" and "get down motherfucker" or "crawl motherfucker."

Tapia disputes whether he or Domino fired the shot that fatally wounded Hernandez. The forensic experts differed at trial. West and Hammed testified that someone -- either Domino or Baker -- carried the wounded Hernandez into the house. Domino stabbed Hernandez, and told the others to do the same. All did. Tapia took Reyes into the bathroom of the house and beat him, seizing his .22 caliber gun.

Hernandez's body was loaded into a pickup, and Tapia and Domino drove off with the body and Reyes to "go fishing." Some time later, the bodies of Reyes and Hernandez, chained to Masonite blocks, washed up on the banks of the Stanislaus River. Reyes had been shot in the head with a .22 caliber weapon.

Tapia and Domino were charged under California law with two counts of murder and the special circumstances of multiple murder and murder while lying in wait. The state also alleged both personally inflicted great bodily injury, were armed, and personally used firearms. Their cases were severed for trial.

Tapia testified in his own defense, claiming Domino had shot both Hernandez and Reyes, and that he had acted under duress from Domino and in self defense. According to Tapia's version of events, Hernandez drew a weapon on him, Tapia yelled "freeze," and, while both he and Hernandez fired their weapons, a third shot by Domino actually killed Hernandez. Tapia also contended that he intended only to warn Reyes to stop the "rip-offs," and did not intend to kill him.

A California state jury convicted Tapia of the premeditated murder of Hernandez while armed with a handgun, and the second-degree (unpremeditated) murder of Reyes. The jury found true the special circumstance of "lying in wait" with regard to Hernandez, and the special circumstance of multiple murder with regard to Reyes. The jury also found that Tapia had been armed and personally used a firearm with regard to both murders, and that Tapia had personally inflicted great bodily injury on Hernandez, but not on Reyes.

Tapia pursued a direct appeal and habeas corpus relief in the California state court system. He then filed for habeas corpus in the federal courts, under 28 U.S.C. S 2254. A magistrate judge submitted a report recommending that his petition be denied. After considering objections to the report, the district court ordered the habeas corpus petition denied. Tapia was then issued a certificate of probable cause to pursue this pre-Anti-terrororism and Effective Death Penalty Act of 1996 ("AEDPA") appeal.

STANDARD OF REVIEW

Because Tapia's initial petition was filed prior to the effective date of AEDPA, AEDPA's provisions do not apply. See Jeffries v. Wood, 103 F.3d 827 (9th Cir. 1996).

The district court's decision to grant or deny a section 2254 habeas petition is reviewed de novo. See Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir. 1998). Findings of fact made by the district court relevant to its decision are reviewed for clear error. See Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.1995). This court may affirm on any ground supported by the record, even if it differs from the rationale of the district court. See id.

The standard for determining whether habeas relief should be granted because of trial error is whether the alleged error " `had substantial and injurious effect or influence in determining the jury's verdict.' " Brecht , 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Trial errors that do not meet this test are deemed harmless. See Eslaminia, 136 F.3d at 1237. If this court is "utterly unable" to determine if an error is harmless, but is in "grave doubt," it will not treat the error as harmless. See Bonin, 59 F.3d at 824.

We review de novo whether a constitutionally deficient jury instruction is harmless error. See Hart v. Stagner, 935 F.2d 1007, 1012 (9th Cir. 1991). We also review de novo whether an instruction violates due process by creating an unconstitutional presumption or inference. See Hanna v. Riveland, 87 F.3d 1034, 1036-37 (9th Cir. 1996).

We review a Brady v. Maryland, 373 U.S. 83 (1963), claim to determine whether the defendant has made a showing that without a violation there would have been a reasonable probability of a different result, such as to undermine confidence in the outcome of the trial. See Kyles v. Whitely , 514 U.S. 419, 434 (1995). A state habeas petitioner is entitled to an evidentiary hearing on a claim if he did not receive a full and fair evidentiary hearing in state court and if he alleges facts that, if proven, would entitle him to relief. See Turner v. Marshall, 63 F.3d 807, 815 (9th Cir. 1995). The court's decision to deny an evidentiary hearing is reviewed for abuse of discretion. See Villafuerte v. Stewart, 111 F.3d 616, 633 (9th Cir. 1997).

ISSUES AND ANALYSIS

I. Beeman Error

All parties agree that the aiding and abetting instruction given the trial jury was erroneous under People v. Beeman, 674 P.2d 1318, 35 Cal. 3d 547 (1984), as it failed to instruct the jury to find "intent to encourage or facilitate the criminal offense." The Supreme Court ruled in California v. Roy, 519 U.S. 2 (1996), that federal courts reviewing such claims must determine only whether "the error `had substantial and injurious effect or influence in determining the jury's verdict,' " Brecht, 507 U.S. at 637 (quoting Kotteakos , 328 U.S. at 776). Tapia contends, however, that Roy does not control, as in his case -- unlike Roy -- no state court ever reviewed the Beeman error under the Chapman, 386 U.S. at 24, "harmless beyond a reasonable doubt" standard of harmless error review. Thus, Tapia argues the district court was required to conduct Chapman review of the error, which he believes would lead to a grant of relief.

We need not decide whether Brecht or Chapman review is appropriate to the determination of whether the Beeman error was harmless in this case, as the error was harmless under either standard. Cf. Hanna, 87 F.3d at 1038 n.2 (refusing to decide issue as error was not harmless under either standard).² The jury's separate determination that Tapia was guilty of special circumstances related to both murders shows that it necessarily determined that Tapia "had or shared the specific intent to kill" both of the victims, the equivalent of finding the omitted "intent to encourage or facilitate the criminal offense" element of aiding and abetting in these circumstances. Thus, if the jury did find...