*1 right not to be has a constitutional UHBT Insurance Com-
regulated the California
missioner. vague equal protection argu
Moideen’s similarly Moideen is not
ment is baseless. any suspect regulating in
part of class and rationally companies is related to a
surance
legitimate state interest. See McMillan Dist., 1453, Water
Goleta
Cir.1986), 906, 107 cert. denied 480 U.S. (1987). all of With light favorable to
facts viewed most
Moideen, entitled to the Commissioner was
judgment on Moideeris as a matter law
constitutional claims.
CONCLUSION employee
UHBT is not an welfare benefit preempt any
plan and thus does not ERISA regulations they insurance California’s Finally,
apply to UHBT. the district court summary judgment granting not err in
did
favor of the Commissioner on Moideen’s con- claims, court
stitutional nor did the district denying Moideen’s
abuse discretion motion.
recusal
AFFIRMED. ROY,
Kenneth Duane Petitioner-
Appellant, Kamp; GOMEZ; John De
James Van Merkle, al.,
and William et
Respondents-Appellees.
No. 94-15994. Appeals,
United Court of States
Ninth Circuit.
Argued April 1995. Submitted
Decided June 1995.
1484 stopped
truck. The officer
truck
and
advised the four not to drive.
midnight,
after
Sometime
officers came
upon
pickup
truck nose down
a ditch.
The bodies of Clark and Mannix were found.
signs
stabbing.
The bodies showed
of
Man-
body
partly submerged
nix’s
was
in the ditch
body
water under the truck. His
later re-
drowning.
of
vealed evidence
Both bodies
signs
having
stripped
showed
of
been
of
clothing,
clothing
and such
as was found
pockets
showed the
turned out. Blood was
bushes,
papers,
found on
and
not otherwise
Drozd,
Snellings,
Hill C.
Blackmon &
Sac-
described, were found scattered near the
ramento, CA,
petitioner-appellant.
for
Roy McHargue
truck.
present,
and
were not
nearby
but were found about 3 a.m. in a
Venturi,
Gen.,
Margaret
Deputy Atty.
Sac-
wearing
restaurant. Both men were
wet and
ramento, CA,
respondents-appellees.
muddy clothing.
Roy McHargue
were informed of their
rights
Miranda
and consented to a search of
backpacks. McHargue’s
yielded
their
pack
*,
HUG,
Before: GIBSON GOODWIN and
Mannix’s wet moccasins and his vest. After
Judges.
Circuit
arrested,
Roy
the two men were
a search of
knife,
cash,
produced a Buck
and a
$170.52
GOODWIN;
Opinion by Judge
by
Dissent
having belonged
watch later identified as
Judge HUG.
Roy
charged
Mannix.
was
with two counts
degree
and two counts of first
GOODWIN,
Judge:
Circuit
murder.
Roy appeals
Kenneth Duane
the denial of
trial, Roy
testify,
At
but the
corpus petition
his
challenging
jail
testimony
heard
from two
inmates who
1983 California conviction for first
swore
participation
had told them of his
robbery. Roy’s principal point
murder and
killing
in the
of Clark and Mannix.
appeal
Superior
is that because the
The state’s case was structured on two
Court’s instruction did not conform to the
support
theories to
pre-
murder:
Beeman,
requirements
People
35 Cal.3d
meditation
prosecu-
murder. The
547,
60,
(1984),
Cal.Rptr.
special consequences stabbing knowingly deaths of the two act knives that he aided or encouraged.” victims, but this issue was eliminated state CALJIC No. 300 as amended CALJIC proceedings. court No. 4.25. Roy guilty *3 The found of second de- given, CALJIC No. 301 as per- reads: “A Clark, him
gree
killing
murder for
but found
son aids and abets the commission of a crime
guilty
robbing
jury
of
The
an-
not
Clark.
if,
knowledge
with
purpose
of the unlawful
of
special
question
“no” on
swered a
verdict
the
crime,
perpetrator
aids,
the
pro-
of the
he
knife,
him
whether
used his
but found
motes, encourages
instigates by
or
act or
degree
killing
in
guilty of first
murder
the
of
advice the
of
commission
such crime.”
Mannix.
The Beeman error in the above in
argues,
agree,
and we
that
now
the
struction consisted in the failure of the court
of
verdict
second
murder of Clark
jury
to tell the
that an aider and abettor
theory
premeditation in
eliminates the
of
(Roy)
only
must not
pur
know the unlawful
Roy’s
first-degree
conviction of
murder. The
pose
accomplice (McHargue),
of the
but must
validity Roy’s
of
first
murder convic-
encourage
intend to
or facilitate the commis
killing
depends
in
tion
the
of Mannix thus
sion of the
robbery
offense—in this case the
felony
aiding
murder
the course of
Beeman,
of Mannix. See
at
Cal.3d
abetting
robbing
the
of Mannix.
(Beeman
Cal.Rptr.
INSTRUCTIONS tried.) instructions as murder robbery, the murder was committed while the defen- murder was committed in order to the commission of a dant was special and in The trial court instructed the writing,1 circumstance, is engaged true, inter it in or was an must be robbery. alia, referred to in these the commission of “[t]o proved: accomplice find that [2] jury orally carry That the [1] That out the found the Beeman error harmless robbery reasonable the appeal court denied The On direct theory petition affirmed the of Mannix. The court of doubt, of appeal, post aiding conviction relief in 1989. and the state felony the California court of murder verdict on corpus abetting beyond supreme the dis- appeal a trict court again followed. The district court or advance the commission of the crime beyond found the Beeman error harmless words, robbery_ special In other cir- the doubt, saying: juror reasonable “No rational cumstance referred to ... is not established McHargue, could find that aided know- merely if the ... incidental to was, ing McHargue’s purpose what without commission of the the murder.” also that intended to aid McHar- jury The was also instructed “if a human gue purpose.” agree. in his We being by any persons is killed one of several of, engaged in perpetration attempt the or to DISCUSSION perpetrate, robbery, persons the crime of all knowledge ... pur- who of the unlawful appeal argument The advances the pose perpetrator of the of the crime aid ... giv that because no Beeman instruction was commission, guilty are intent, en on an essential element of the degree, killing whether the is intention- crime, Carella, requires a new trial. We (1979). al, or accidental.” CALJIC No. 8.27 § have in the 2254 cases collected in Mar jury Borg, further instructed that one tinez v. Cir. 1991), only guilty aids and “who abets is not of the refused to find the Beeman error particular knowledge beyond crime that to his harmless a reasonable doubt. But contemplating committing, teaching confederates are of the Carella line of cases tells decided, jury actually but he is also liable for the natural us look to what the challenged jury 1. The not has minor differ- those sent into the room in written appeal jury ences between instructions as read to the form. we, jury jury judges, believe the nix. But the had it not before the defense what they properly attempted if had been evidence that to cast doubt on would have decided jury intent, if in- Roy’s capacity have held that to form criminal instructed. We or (in offense, otherwise, jury of the obviously structions omit an element intent) ease, conclude, constitutional error specific believe that evidence. We as did Court, results. See Martinez. the California courts and the District only rational route which the If the returned a verdict from which it could have followed to reach the verdict it jury actually made could be said that the reached in this had to im- case include the predicate finding, fact then we af- essential plicit finding help intended to Here, only way firm. rational McHargue, knowing McHargue’s purpose. Roy guilty on a could have found evidence, supported That verdict was *4 theory by making preliminary was a completely Hegler Borg, was rational. 50 predicate finding Roy that intended factual — McAninch, (quoting 1472 F.3d O’Neal v. Mannix, help McHargue to while know- rob -, -, 992, 995, U.S. 115 S.Ct. 130 ing McHargue to that intended rob Mannix. (1995),“Only L.Ed.2d 947 if the record dem- necessary It is therefore for us to review the jury’s onstrates the decision was substantial- record, whole, the instructions as a ly by influenced the trial error or there is verdict, jury, to determine whether the de- ‘“grave doubt” about whether an error af- instruction, spite incomplete to the had find jury way’ [Roy] in this fected will be enti- every material element of the offense in or- relief.”). tled to habeas der to return the verdict it returned. AFFIRMED. Roy argues jury the have could found that McHargue to he knew intended rob Mannix HUG, Judge, Dissenting: Circuit helped necessarily him do so without finding Roy that intended to assist in the majority recognizes The that under Su Roy, noted, robbery. testify. His preme precedent Court and Ninth Circuit we put expert counsel on evidence in an effort to only jury actually must look to what the prove Roy’s capacity im- that mental determining in decided an essential element intoxication, by paired by as well as his in- judges of a crime not what we as believe the immaturity acuity. herent and lack of mental jury prop would have decided if it had been This evidence was introduced to show the erly California, instructed. See Carella v. jury Roy was unable to form intent 263, 268-69, 2419, 2422, 491 U.S. 109 S.Ct. all, help McHargue at much less an intent to (1989) (Scalia, J., concur put Mannix. The state on evidence to rob Evatt, ring); 391, 404, Yates v. 500 111 U.S. contrary. jury The was entitled to disbe- 1884, (1991); S.Ct. 114 L.Ed.2d 432 Roy’s experts. lieve — Louisiana, U.S. -, -, Sullivan v. 2078, 2082, (1993); L.Ed.2d 182 not Whether or the Beeman instruction Borg, Martinez v. case, given, had in been the evidence Cir.1991). However, majority fails to jury no could fail to find that to intended apply that law to this case. McHargue subduing robbing aid in Man- explana- nix.2 There was no other rational majority acknowledges The that there was physical tion of the evidence and the testimo- a “Beeman” error in the trial court’s failure ny Roy’s participation about admitted that, jury to instruct the order to find robberies and murders that could be consis- guilty aiding abetting robbery tent with the verdict. Mannix, it must find that intended to imaginary per- encourage Hypothetical robbery. scenarios or facilitate the Al- haps may suggest though clearly contrived to there is be evidence from which a intent, help McHargue requisite did not intend to rob Man- could have found the necessary 2. It was not that the find that of Mannix which resulted in his McHargue help intended to kill Mannix. Such a finding support Roy’s death was a sufficient to finding support could have found in the evi- felony murder verdict. dence, aiding requested, but was not because say jury did way can that the no we there is “predicate” MILLER, There is' no re N.
find that intent. In Sharon Debtor. say that the we can from which MILLER, Plaintiff-Appellant, intent, N. as the Sharon requisite actually found majority indicates. majority simply weighs the evidence GENTRY, Gerald Ph.D. and Micheline judgment because it finds
and substitutes Burger, Defendants-Appellees. Z. is the possibilities “fanciful.” This the other No. 94-3225. analysis that is very type harmless error Sullivan, Carella, Yates, foreclosed Appeals, United States Court of Martinez. Tenth Circuit. trial, quite it the evidence at From May 1995. Roy’s jury could have found that possible the coming McHargue’s aid intent
fight Mannix was to save killed, robbery. being not to aid in a
from found, among jury could have other
theOr *5 Clark, Roy by fighting
possibilities, without fact aided
intending fight with Clark to have such jury simply could have
an effect. Or Roy did not intend to aid
found that point is
robbery for whatever reason. The finding, not make and we as did supply finding on
appellate judges cannot our for one the
an element of the crime essential not make. did jury finding
A intended to aid necessary finding an robbery was a charged crime of
essential element of the degree murder. The first finding. be this This error cannot
make grant petition I
harmless. would corpus murder McHargue.
conviction for the murder of course,
This, Roy’s convic- would not affect
tion of second murder for the
of Clark.