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finding that habeas claim based on police officer's failure to tape-record a portion of petitioner's interrogation "does not state a violation of a federal constitutional or statutory right"
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The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a).
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Central District of California John G. Davies, District Judge, Presiding.
Before BRUNETTI, LEAVY, and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
California state prisoner Shaka F. Mohemmed appeals the district court's denial of his 28 U.S.C. § 2254 petition, challenging his 1991 convictions for second degree murder and shooting into an occupied motor vehicle. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review the denial de novo,see Duckett v. Godinez, 67 F .3d 734, 739 (9th Cir.1995), and we affirm.
Mohemmed contends that the trial court erred by instructing the jury that it could find him guilty of felony murder when the underlying felony, shooting at an occupied vehicle in violation of California Penal Code § 246, was an integral part of the murder and merged with the murder. See People v. Ireland, 450 P.2d 580, 589-90 (Cal.1969) (in bank); see also Suniga v. Bunnell, 998 F.2d 664, 667-68 (9th Cir.1993). Contrary to Mohemmed's contention, a violation of section 246 can serve as an underlying felony without violating the merger doctrine in California. See People v. Hansen, 885 P.2d 1022, 1030-31 (Cal.1994) (in bank); People v. Tabios, 78 Cal.Rptr.2d 753, 759 (Cal.Ct.App.1998).
Because felony murder based on a violation of section 246 is a permissible theory for conviction in California, the rationale of Suniga is not applicable here. Cf. Suniga, 998 F.2d at 670 (reversal required because of possibility that petitioner was convicted based on a nonexistent theory of criminality). Under California law, the felony murder instruction was not erroneous. See Hansen, 885 P.2d at 1031; Tabios, 78 Cal.Rptr.2d at 759.
Even were we to conclude that these cases are inapplicable because they were decided after Mohemmed's conviction became final, the instruction did not violate his due process rights. See Estelle v. McGuire, 502 U.S. 62, 72 (1991) (court must consider the instruction in the context of the instructions as a whole). Although the trial court gave an initial murder instruction that included felony murder, it then described the elements necessary to find Mohemmed guilty of various degrees of murder. The second degree murder instructions required the jury to find that Mohemmed acted with either "malice aforethought" or "knowledge of the danger to and with conscious disregard for human life." Thus, the jury could have found Mohemmed guilty of second degree murder only by concluding that he acted with malice. See Wade v. Calderon, 29 F .3d 1312, 1321 (9th Cir.1994) (law presumes that jury follows instructions). Because the instruction did not so infect the entire trial that the resulting conviction violated due process, the district court did not err by denying Mohemmed's habeas petition. See Estelle, 502 U.S. at 72.
AFFIRMED.