Dennis L. STEPHENS, Petitioner-Appellant, v. Robert G. BORG, Warden, Respondent-Appellee

Opinion by Judge SCHROEDER; Dissent by Judge ALDISERT.

Dennis Lee Stephens appeals the district court’s denial of a writ of habeas corpus challenging his California state court convictions for first degree murder with use of a deadly weapon, Cal-Penal Code §§ 187, 12022(b), and assault with a deadly weapon, Cal.Penal Code §§ 245, 1181.6. He was sentenced to state prison for 31 years to life. In this 28 U.S.C. § 2254 petition, he contends that his Sixth Amendment rights were violated when the state successfully requested a felony-murder instruction. He argues that the prosecution’s conduct in the proceedings misled him into believing that the state would not ask for a felony-murder instruction. The district court granted the appellee summary judgment. We review de novo a district court’s denial of a petition for a writ of habeas corpus, see Harris v. Vasquez, 949 *934 F.2d 1497, 1510 (9th Cir.1990), cert. denied, 503 U.S. 910 , 112 S.Ct. 1275 , 117 L.Ed.2d 501 (1992), and we affirm.

The crimes occurred on February 25, 1985 in a market in Pittsburg, California. Stephens took a package of meat, hid it under his jacket and started to leave the store without paying. One of the market…

Dissenting.

I would reverse the denial of Dennis L. Stephens’ petition for writ of habeas corpus. Accordingly, I dissent.

As the majority note, an accused has “a fundamental right to be clearly informed of the nature and cause of the charges in order to permit adequate preparation of a defense.” Sheppard v. Rees, 909 F.2d 1234, 1236 (9th Cir.1989). Thus, “Due process entitles an accused to know the charges against which he must defend in order to have a reasonable *937 opportunity to prepare and present a defense and not be taken by surprise at trial.” Usher v. Gomez, 775 F.Supp. 1308, 1313 (N.D.Cal.1991), aff'd, 974 F.2d 1344 (1992), cert. denied, — U.S. -, 113 S.Ct. 1007 , 122 L.Ed.2d 156 (1993). In this ease, the State of California denied Stephens his right to due process by ambushing him with a request for a felony-murder instruction after charging him not with the underlying offense of burglary, but instead with petty theft, and after inducing him to plead guilty to the petty theft count.

The State chose to indict Stephens on three counts: a generic charge of murder under CaLPenal Code § 187 and attempted murder under Cal.Penal Code § 245, and a charge of petty theft with…

59 F.3d 932 95 Cal. Daily Op. Serv. 5334 , 95 Daily Journal D.A.R. 9117 Dennis L. STEPHENS, Petitioner-Appellant, v. Robert G. BORG, Warden, Respondent-Appellee. No. 93-15711. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 11, 1995. Decided July 11, 1995. Eric S. Multhaup, San Francisco, CA, for petitioner-appellant. Laurence K. Sullivan, Deputy Atty. Gen., San Francisco, CA, for respondent-appellee. Appeal from the United States District Court for the Northern District of California. Before: ALDISERT, * GOODWIN, and SCHROEDER, Circuit Judges. Opinion by Judge SCHROEDER; Dissent by Judge ALDISERT. SCHROEDER, Circuit Judge: 1 Dennis Lee Stephens appeals the district court's denial of a writ of habeas corpus challenging his California state court convictions for first degree murder with use of a deadly weapon, Cal.Penal Code Secs. 187, 12022(b), and assault with a deadly weapon, Cal.Penal Code Secs. 245, 1181.6. He was sentenced to state prison for 31 years to life. In this 28 U.S.C. Sec. 2254 petition, he contends that his Sixth Amendment rights were violated when the state successfully requested a felony-murder instruction. He argues that the…