due process claim. This claim is therefore the sole subject of the present petition.
In July 1990 the Ninth Circuit Court of Appeals decided a case which raised claims similar to petitioner's. Sheppard v. Rees, 909 F.2d 1234 (9th Cir. 1990). In September 1990 this court stayed further proceedings on this petition and ordered the appointment of counsel for petitioner, who had been acting pro se, in order to address the impact of Sheppard on petitioner's due process claim. Counsel was appointed, and in February 1991 the court directed counsel for both sides to submit briefs regarding the impact of Sheppard. In May 1991 this court heard oral argument and the petition was submitted for decision. The court concluded that no evidentiary hearing was necessary because the issues were ones to be resolved from the state court record. The court has considered the moving and opposing papers, the record and the applicable authorities, and concludes that petitioner's writ must be denied.
The facts of Usher's conviction are as follows: He was accused of the murder of a drug dealer, Raymond Prudhomme. After Prudhomme's death, Usher approached his pastor and told him that he was involved in the death of a man. The pastor advised Usher to turn himself into the police. Usher allegedly confessed to police authorities that he initially planned to rob the victim, but eventually decided that the only way to get away with the robbery was to eliminate Prudhomme. The police then arrested Usher on murder charges.
Usher later summoned the police to his cell and said that one Mack Robinson had conceived of the plan to lure Prudhomme to Robinson's apartment. Usher said that Robinson, instead of intimidating the victim with a gun, shot him as they prepared to rob him. The police searched Robinson's apartment and found the victim's blood on the walls and carpet.
Usher's defense was that he was merely present as a drug tester, that he was under the influence of drugs at the time of the murder, and that he confessed to the crime because some inducement was offered to him.
Usher was originally charged in a four count information with: (1) murder, California Penal Code § 187;
(2) personally using a firearm in commission of the murder, § 12022.5; (3) the felony of robbery, § 211; and (4) possession of a firearm by a previously convicted felon, § 12021. Prior to trial, petitioner's counsel filed a motion to dismiss the robbery count pursuant to California Penal Code § 995. The district attorney did not oppose the motion and conceded that there was insufficient evidence to support a robbery allegation. The Superior Court ordered the robbery count dismissed before trial. However, dismissal of the robbery charge did not under California law bar the prosecution from convicting Usher of felony murder with the robbery as the underlying felony. People v. Uhlemann, 9 Cal. 3d 662, 666, 108 Cal. Rptr. 657, 659, 511 P.2d 609 (1973); People v. Van Eyk, 56 Cal. 2d 471, 477, 15 Cal. Rptr. 150, 153-54, 364 P.2d 326 (1961).
During jury voir dire, the court explained the doctrine of felony murder to the potential jurors, and the prosecutor questioned the prospective jurors on that issue. (See e.g., RT at 27-28, 35, 41, 44, 46, 73, 82, 87, 98-99, 146). In his opening statement, the district attorney informed the jury that he intended to prove that Usher planned the murder in order to commit robbery. (RT 203-206). No objection was made to those references to felony murder. Instead, defense counsel responded by asserting that the evidence would show that Usher was incapable of planning a murder, "let alone a robbery." (RT 209).
Before final argument, the trial judge stated for the record that defendant's counsel approved all of the instructions to be given to the jury, except an instruction relating to lesser included offenses. (RT 407). The trial court instructed the jury on the elements of premeditated murder, and on felony murder by means of robbery. (RT 409, 423-429, 444-446, 448). The trial court also instructed the jurors that both premeditated murder and felony murder are first degree murder, and that even if they differed on whether petitioner was guilty of premeditated murder or felony murder, they could convict Usher of first degree murder so long as each juror was convinced that defendant was guilty of some form of first degree murder. (RT 432-33).
The jury found Usher guilty of first degree murder and possession of a firearm by a convicted felon, but not guilty of the charge that he personally used a handgun in the commission of the murder. (Abstract of Judgment, Amended Petition at 14). Usher was sentenced to prison for 25 years to life.
Petitioner challenges his conviction on the ground that the charging information did not provide him with notice of the felony murder theory. Petitioner argues that the information therefore violated the sixth amendment of the United States constitution. Usher asserts this lack of notice, notwithstanding the fact that under California law a defendant may be convicted of felony murder even though the underlying felony has been dismissed. Uhlemann, 9 Cal. 3d at 666, 108 Cal. Rptr. at 659.
California state courts use a "short form" of criminal charging, as prescribed by California Penal Code sections 951 and 952. Usher's murder charge conformed to those statutes and stated in full:
The District Attorney of the County of Alameda hereby accuses NATHANIEL ELISHA USHER of a felony, to wit, Murder, a violation of Section 187 of the Penal Code of California, in that on or about the 16th day of October, 1979, in the County of Alameda, State of California, said defendant did then and there murder RAYMOND JOHN PRUDHOMME, a human being.
Information, Amended Petition at 13.
California Penal Code § 187 defines murder as "the unlawful killing of a human being . . . with malice aforethought." The degree of murder is then defined by California Penal Code § 189. First degree murder includes a killing which is "willful, deliberate, and premeditated," or which is committed in the perpetration, or attempt to perpetrate, certain felonies, including robbery.
The California Supreme Court has repeatedly held that an accusatory pleading charging murder in the above-quoted form, without specifying the degree of murder, adequately apprises the accused of the first degree murder charge. In re Walker, 10 Cal. 3d 764, 781, 112 Cal. Rptr. 177, 188, 518 P.2d 1129 (1974). Specifically,
It has long been settled that under such a charge the accused may be convicted of first degree murder on the theory that the murder was committed in the perpetration of one of the felonies specified in Penal Code section 189 (citation omitted).