Antranik Khajarian v. Michael Evans

concurring:

I would hold the challenged instruction constitutionally invalid. I therefore concur in the memorandum disposition only insofar as it holds any error harmless.

MEMORANDUM **

Petitioner, Antranik Khajarian (“Khaja-rian”), appeals the district court’s denial of habeas relief.

*707 A Los Angeles superior court jury convicted Khajarian of one count of 2nd degree murder and three counts related to arson. Khajarian contends: 1) the trial court’s erroneous response to a question from the jury constituted constitutional error; and 2) the error cannot be considered harmless.

At trial, the State presented persuasive evidence that Khajarian poured gasoline on the carpet near a heater in a room where his incapacitated grandmother lay sleeping. The State’s psychologist testified Khajarian had a borderline personality disorder, but he stated Khajarian was sane at the time of the incident. The psychologist further testified Khajarian admitted to pouring gasoline on the carpet when he heard voices telling him to do so. In addition, the prosecutor presented evidence that: 1) Khajarian drove away from the scene shortly after the fire occurred; and 2) he had possessed a gas can similar to the one found at the scene.

During deliberations the jury asked: “Can we find defendant guilty of 2nd degree murder with a guilty on arson?” Despite both parties’…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAR 20 2013

MOLLY C. DWYER, CLERK

U .S. C O U R T OF APPE ALS

ANTRANIK KHAJARIAN, No. 11- 57200

Petitioner - Appellant, D.C. No. 2:09-cv-00096-ODW-SS

v.

MEMORANDUM *

MICHAEL EVANS, Warden of Folsom State Prison,

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Otis D. Wright, District Judge, Presiding

Argued and Submitted February 13, 2013 Pasadena, California

Before: BERZON and WATFORD, Circuit Judges, and CARR, Senior District Judge.**

Petitioner, Antranik Khajarian (“Khajarian”), appeals the district court’s

denial of habeas relief.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable James G. Carr, Senior United States District Judge for the Northern District of Ohio, sitting by designation. A Los Angeles superior court jury convicted Khajarian of one count of 2nd

degree murder and three counts related to arson. Khajarian contends: 1) the trial

court’s…