Kenneth Duane Roy v. James Gomez John Van De Kamp and William Merkle

Opinion by Judge GOODWIN; Dissent by Judge HUG.

Kenneth Duane Roy appeals the denial of his habeas corpus petition challenging his 1983 California conviction for first degree murder and robbery. Roy’s principal point on appeal is that because the Superior Court’s instruction did not conform to the requirements of People v. Beeman, 35 Cal.3d 547 , 199 Cal.Rptr. 60 , 674 P.2d 1318 (1984), the jury was permitted to convict him without finding an element of the crime. Carella v. California, 491 U.S. 263 , 109 S.Ct. 2419 , 105 L.Ed.2d 218 (1989) (Justice Scalia concurring).

FACTS

On September 13, 1981, Kenneth Roy and one Jesse McHargue, while hitch hiking near Gridley, California, met Archie Mannix and James Clark outside a liquor store and began drinking beer with them. A Gridley police officer observed the foursome in a pickup truck. The officer stopped the truck and advised the four not to drive.

Sometime after midnight, officers came upon the pickup truck nose down in a ditch. The bodies of Clark and Mannix were found. The bodies showed signs of stabbing. Man-nix’s body was partly submerged in the ditch water under the truck. His body later revealed evidence of drowning. Both…

Dissenting:

The majority recognizes that under Supreme Court and Ninth Circuit precedent we must only look to what the jury actually decided in determining an essential element of a crime not what we as judges believe the jury would have decided if it had been properly instructed. See Carella v. California, 491 U.S. 263, 268-69 , 109 S.Ct. 2419, 2422 , 105 L.Ed.2d 218 (1989) (Scalia, J., concurring); Yates v. Evatt, 500 U.S. 391, 404 , 111 S.Ct. 1884, 1893 , 114 L.Ed.2d 432 (1991); Sullivan v. Louisiana, — U.S. -, -, 113 S.Ct. 2078, 2082 , 124 L.Ed.2d 182 (1993); Martinez v. Borg, 937 F.2d 422, 424 (9th Cir.1991). However, the majority fails to apply that law to this case.

The majority acknowledges that there was a “Beeman” error in the trial court’s failure to instruct the jury that, in order to find Roy guilty of aiding and abetting the robbery of Mannix, it must find that Roy intended to encourage or facilitate the robbery. Although there clearly is evidence from which a jury could have found the requisite intent, *1487 there is no way we can say that the jury did find that intent. There is' no “predicate” finding from which we can say that the jury actually found the…

55 F.3d 1483 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 April 14, 1995. Decided June 9, 1995. Hug, Circuit Judge, dissented and filed opinion. Hill C. Snellings, Blackmon & Drozd, Sacramento, CA, for petitioner-appellant. Margaret Venturi, Deputy Atty. Gen., Sacramento, CA, for respondents-appellees. Appeal from the United States District Court for the Eastern District of California. Before: GIBSON * , GOODWIN and HUG, Circuit Judges. Opinion by Judge GOODWIN; Dissent by Judge HUG. GOODWIN, Circuit Judge: Kenneth Duane Roy appeals the denial of his habeas corpus petition challenging his 1983 California conviction for first degree murder and robbery. Roy's principal point on appeal is that because the Superior Court's instruction did not conform to the requirements of People v. Beeman, 35 Cal.3d 547 , 199 Cal.Rptr. 60 , 674 P.2d 1318 (1984), the jury was permitted to convict him without finding an element of the crime. Carella v. California, 491 U.S. 263 , 109 S.Ct. 2419 , 105 L.Ed.2d 218 (1989) (Justice Scalia…