Ishmael Garcia v. Robert Horel

FILED

NOT FOR PUBLICATION JUL 26 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ISHMAEL GARCIA, No. 11-55843

Petitioner - Appellant, D.C. No. 2:08-cv-00797-JFW-

PLA

v.

ROBERT A. HOREL, Warden, MEMORANDUM *

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Argued and Submitted July 13, 2012 Pasadena, California

Before: KOZINSKI, Chief Judge, REINHARDT and WATFORD, Circuit Judges.

Garcia appeals the district court’s denial of his petition for a writ of habeas

corpus, challenging the sufficiency of the evidence to support his conviction for

attempted murder. He argues that the state presented insufficient evidence

showing he acted with the specific intent to kill another human being.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The district court correctly rejected Garcia’s claim. Under California law, it

was…

MEMORANDUM *

Garcia appeals the district court’s denial of his petition for a writ of habeas corpus, challenging the sufficiency of the evidence to support his conviction for attempted murder. He argues that the state presented insufficient evidence showing he *100 acted with the specific intent to kill another human being.

The district court correctly rejected Garcia’s claim. Under California law, it was enough for the jury to find that Garcia intended to kill someone, even if he did not have a specific target in mind. See People v. Stone, 46 Cal.4th 131 , 92 Cal.Rptr.3d 362 , 205 P.3d 272, 278 (Cal.2009); see also People v. Griggs, 216 Cal.App.3d 734 , 265 Cal.Rptr. 53, 57 (Ct.App.1989). Here, the state presented evidence that Garcia fired seven hollow-point bullets from a .22 caliber rifle into the interior courtyard of an occupied apartment complex. The front doors of the units faced the interior courtyard into which Garcia fired; one round hit an apartment door and others struck a stairwell railing and a planter within the courtyard. Additionally, the state presented evidence indicating that Garcia knew the apartment units were occupied, as he was present during an earlier…

concurring:

I concur in the disposition, but would grant a certificate of appealability on the issue of whether the Information alleging the attempted murder of “John Doe” provided Garcia constitutionally sufficient notice of the charges against him. See Allen v. Ornoski, 435 F.3d 946, 951 (9th Cir.2006) (certificate of appealability should be granted when “the issues are debatable among jurists of reason”).