Alеx Huerta Suniga appeals the district court’s denial of his petition for habeas corpus relief. He argues that his conviction violated due process standards because of instructional errors by the state trial court. We agree in part and reverse the district court’s denial of his petition.
BACKGROUND
Suniga killed Carlos Guantes after a day of partying and, it seems, brooding. On the day of the killing, Suniga, his wife Elеanor Suniga and Guantes attended a party at the beach. Alcohol was consumed there. At about 4:00 in the afternoon they all returned to the apartment complex in which they lived. Suniga and his neighbor, Jesse Caldera, soon left together on Suniga’s motorcycle in order to pick up Caldera’s motorcycle. On the way Suniga told Caldera that he suspected that someone — it turned out he meant Guantes — was “messing with” their wives. They picked up Caldera’s bike, stopped at a bar, drank some more beer, and then left for the apartment complex.
Suniga arrived at the apartment alone. His wife and several others, including Guantes, were drinking in the apartment of Caldera’s wife, Letitia Zuniga. Zuniga saw Suniga arrive and warned Eleanor that he looked angry. Eleanor told her daughtеr to call the police. She then accompanied her husband to their own apartment. On the way there, they began arguing. Suniga got his shotgun from the apartment and then, in view of the neighbors, struck his wife in the back of her head with the butt of the gun. After that, he fired a shot at her or in her general direction and called out, “Have your great boyfriend come out here if he’s man enough.”
Guantes (unarmed, but carrying a beer can) ran out toward Suniga, who was loading the shotgun. The two struggled over the *666 gun and Guantes was shot in the chest at close range. Suniga then pointed the gun at his fallen opponent and said to Eleanor, “Do you want me to shoot him in the head?” The shot would have been unnecessary; Guantes died almost immediately from loss of blood.
The police came and arrested Suniga. While he wаs being booked, he was asked for his correct address. He responded, “I live where I killed that ... punk. I shot him. I hope he dies. He deserves to die for messing around with my wife.”
Suniga was ultimately charged with murder on the theory that he killed Guantes with malice aforethought. At trial, he claimed that the killing was not intentional because the gun accidentally discharged while he was struggling with Guantes. There was evidence that Suniga was under the influence of alcohol. There was also some evidence that Suniga told Guantes to stay away.
While the theory of the prosecution was that this killing was committed with malice aforethought, the jury was instructed on that theory as well as on felony-murder. It is the felony-murder aspect of the instruction that presents the issue with which we must grapple. The court instructed the jury as follows:
The defendant is charged in Count I of the Information with the commission of the crime of murder, a violation of Section 187 of the Penal Code. The crime of murder is the unlawful killing of a human being with malice aforethought or the unlawful killing of a human being which occurs during a commission or attempt to commit a felony inherently dangerous to human life. In order to prove the commission of the crime of murder, each of thе following elements must be proved: Number one, that a human being was killed; two, that the killing was unlawful; and three, that the killing was done with malice aforethought or occurred during the commission of or attempt to commit a felony inherently dangerous to human life.
An assault with deadly weapon is a felony inherently dangerous to human life.
The court then instructed on the definition of malice, including implied malice. 1 It gаve a further definition of second degree murder and of manslaughter and then went on to instruct:
If a person while committing a felony inherently dangerous to human life causes another’s death, the crime is murder. If while committing a misdemeanor inherently dangerous to human life he causes another’s death, he’s guilty of manslaughter. There are many acts which are lawful, [but] nevertheless, endanger human life.
Suniga сontends that these instructions resulted in a trial so unfair that his conviction violated the Constitution. That the trial court erred is indisputable. What we must decide is the effect of that error.
STANDARD OF REVIEW
The question of the ultimate standard of review to be applied in this habeas corpus case is one of some concern. Of course, it is a given that we review the grant or denial of a habeas corpus рetition by the district court
de novo. Thomas v. Brewer,
The only question for us is “whether the ailing instruсtion by itself so infected the entire trial that the resulting conviction violates due process.” (“ ‘[I]t must be established not merely that the instruction is undesirable, erroneous, or even “universally condemned,” but that it violated some [constitutional right]’ ”). It is well estab *667 lished that the instruction “may not be judged in artificial isolation,” but must be considered in the context of the instructions as a whole and the trial record. In addition, in rеviewing an ambiguous instruction ... we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution. And we also bear in mind our previous admonition that we “have defined the category of infractions that violate ‘fundamental fairness’ very narrowly.”
Id.
at -,
If the instructional error does meet the violation of due process standard, we must still ask whether a further error analysis is required. In a habeas corpus case involving trial error which violates a constitutional norm, we must ordinarily go on and decide whether that error was harmless. That is, we must ask whether it “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ”
Brecht v. Abrahmson,
- U.S. -, -,
However, that standard seems a bit redundant in the сase of an instructional error which has already been found to be of a kind that has infected the proceeding to the point that due process has been denied. Furthermore, at least some instructional errors are so serious that they amount to structural defects, “ ‘which defy analysis by “harmless-error” standards.’ ”
Id.
at -,
We recognize that in this case the California Court of Appeal found that the instructional error was harmless beyond a reasonable doubt. However, that determination does not bind us. Rather, harmlessness is a mixed question of fact and law which we review
de novo. See Marino v. Vasquez,
Finally, the record indicates that Suniga did not object to the challenged instruction at the trial court. It is even possible that he participated in requesting the instruction, at least in a general way. He first challenged the instruction on appeal. Nevertheless, the California Court of Appeal considered ' the challenge, as did the district court. The state has never asserted that a procedural default occurred. Thus, we will consider the challenge on its merits.
See Panther v. Hames,
DISCUSSION
The prosecution never did rely upon a felony-murder theory in this case. It did not argue that theory to the jury; it relied upon malice to support a conviction. Thus, when the trial court instructed on felony-murder it interjected an issue that had not previously been part of the case. Thаt is not all. The particular felony-murder theory on which the court instructed does not even exist. In California, there cannot be a second degree murder based upon the theory that a death occurred during the perpetration of an assault with a deadly weapon (ADW) upon the victim. While that is a state — not a constitutional-rule, it is based upon considerations of policy-and justice. As the California Supreme Court said in
People v. Ireland,
We have concluded that the utilization of the felony-murder rule in circumstances *668 such as those before us [,ADW,] extends the operation of that rule “beyond any rational function that it is designed to serve.” To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all eases wherein hоmicide has been committed as a result of a feloneous assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged, [citations omitted]
That view is widely held.
See
Robert L. Simpson, Annotation,
Application of Felony-Murder Doctrine Where the Felony Relied Upon Is an Includible Offense With the Homicide,
Given this, we cannot brush aside Suniga’s claim on the theory that what occurred was simply an error of state law. It was an error of state law, but it was not simply that. It was also an error that allowed the jury to convict Suniga on а theory of culpability that did not exist. It is that aspect which raises the specter of fundamental unfairness and which requires us. to look harder.
Suniga asserts that the effect of the instruction was to allow the jury to convict him of an element of murder on a lesser standard than beyond a reasonable doubt.
See Sandstrom,
Well then, Suniga says, the vice here is that the jury was instructed on two entirely separate crimes and was not required to reach unanimity on either of them. Again, we must disagree. California declares that both of these routes-malice-murder and felony-murder-lead to but one crime, murder.
See People v. Gallego,
This issue does shade off into a question of whether the vice here is one of inadequate notice. We addressed that problem in
Sheppard
where the state admitted that the defendant had been misled and ambushed when a felony-murder theory was injected by the prosecution at the last minute.
In
Francis,
for example, the Supreme Court expressed its concern that the state not be relieved of its “burden of persuasion beyond a reasonable doubt of every essential element of a crime.”
A note of caution sounded by the Court in Schad must also guide us as we review these issues:
Thus it is an assumption of our system of criminal justice “ ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,”’ that no pеrson may be punished criminally save upon proof of some specific illegal conduct. Just as the requisite specificity of the charge may not be compromised by the joining of separate offenses, nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of “Crime” so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction.
— U.S. at -,
The same theme was sounded in
Sheppard,
where we said that “[a] trial cannot be fair unless the nature of the charges against a defendant are adequately made known to him or her in a timely fashion.”
Again, these cases help to uncover- the fundamental error in the instructions given in this case, an error which of its nature “infected the entire trial.”
McGuire,
— U.S. at -,
This is no phantom, as a fanciful example will illustrate. Suppose in the middle of this awful event Suniga stepped on and killed an ant and the judge instructed the jury that Suniga could be found guilty of the felony-murder of Guantes with the felony being the squashing of an ant. True, that is ludicrous. But felоny-murder ADW is no more a crime than felony-murder death of an ant. Indeed, ADW is a more dangerous formulation because the jury would most likely perceive the absurdity of felony-murder ant-squashing while the flaw in felony-murder ADW is not at all obvious, even though the California Supreme Court has dubbed it irrational and unsupported by logic or law.
See Ireland,
But, the state argues, the evidence of malice was strong. We agree; it was very strong. There can be little doubt that Suniga wаs equipped with a gun, called out to the victim, and showed nothing but a hateful disposition after his victim was felled. Of course, there is also no doubt that the victim did charge at Suniga and that the men grappled over the gun. Suniga’s drinking is also unquestioned. But all of this is beside the point, for this is not a harmless-error case. As we said in Sheppard:
Neither can we, as the state suggests, base a harmless-error determination on the seemingly overwhelming weight of the evidence pointing to the petitioner’s guilt of ... murder. Where two theories of culpability are submitted to the jury, one correct and the other incorrect, it is impossible to tell which theory of culpability the jury followed in reaching a general verdict.
CONCLUSION
The state trial court erroneously instructed the jury on the theory of felony-murder. We have determined that its error was so serious that the “ ‘instruction by itself so infected the entire trial that the resulting conviction violates due process.’ ”
McGuire,
■ — U.S. at ——,
We revеrse the district court’s denial of habeas corpus and remand to that court. It shall issue the writ and determine a reasonable time in which the State of California shall re-try Suniga.
REVERSED and REMANDED.
Notes
. The form of implied malice instruction has been criticized in California.
See People v. Dellinger, 49
Cal.3d 1212, 1221,