Stephen Ho v. Anthony Newland, Warden of Solano State Prison Attorney General of the State of California

322 F.3d 625 Stephen HO, Petitioner-Appellant, v. Anthony NEWLAND, Warden of Solano State Prison; Attorney General of the State of California, Respondents-Appellees. No. 01-16823. United States Court of Appeals, Ninth Circuit. Argued and Submitted January 14, 2003. Filed February 26, 2003. COPYRIGHT MATERIAL OMITTED Dennis P. Riordan and Donald M. Horgan, Riordan & Rosenthal, San Francisco, CA; Marc Zilversmit, San Francisco, CA, for the petitioner-appellant. Mark S. Howell, Deputy Attorney General of the State of California, San Francisco, CA, for the respondents-appellees. Appeal from the United States District Court for the Northern District of California; Susan Yvonne Illston, District Judge, Presiding. D.C. No. CV-99-04580-SI. Before: HUG, ALARCÓN, and GRABER, Circuit Judges. Opinion by Judge ALARCÓN; Dissent by Judge HUG. ALARCÓN, Senior Circuit Judge: 1 Petitioner Stephen Ho, a California state prisoner, appeals from the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 . Ho asserts that he was deprived of his constitutional right to have a jury decide every element of the offense of second-degree murder based on…

Opinion by Judge ALARCÓN; Dissent by Judge HUG.

Petitioner Stephen Ho, a California state prisoner, appeals from the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 . Ho asserts that he was deprived of his constitutional right to have a jury decide every element of the offense of second-degree murder based on implied malice because the trial court erroneously instructed the jury that the offense was a general-intent crime: We agree and reverse the district court’s denial of the petition.

I

Ho was convicted of second-degree murder based on implied malice, with an enhancement for the use of a gun. The trial court denied Ho’s motion for a new trial and sentenced him to a term of fifteen years to life plus an additional four-year sentencing enhancement for using a gun.

Ho appealed his conviction to the California Court of Appeal (“Court of Appeal”), which affirmed the conviction in an unpublished opinion. Ho’s application for a writ of habeas corpus was denied by the Court of Appeal and the California Supreme Court. Ho then filed a petition for a writ of habeas corpus in the District Court for the Northern District of California in which he…

dissenting:

I respectfully dissent.

The trial judge correctly instructed on the elements of second degree murder in the oral instructions, and in the written instructions that were sent to the jury room. The issue before the California Court of Appeal was whether the earlier instruction concerning general criminal intent created such ambiguity in the minds of the jurors as to require reversal. The California Court of Appeal stated:

The Court of Appeal then cited those particular instructions that were given by the trial court. The Court of Appeal further stated:

(citations omitted). The Court of Appeal then stated:

(Ellipsis and paragraph designations in original.)

The Court of Appeals then noted that, after discussion with counsel outside the presence of the jury, the general intent instructions were modified to specify that they applied only to involuntary manslaughter and that the written instructions given to the jury so indicated.

After giving the instructions for first degree murder the trial court gave the following instructions concerning the elements of second degree murder.

The trial court then gave the instructions concerning the specific elements of voluntary…