The opinion of the court was delivered by: Terry J. Hatter, Jr. United States District Judge
After the California Supreme Court denied review of the California Court of Appeal judgment affirming Karapetyan's conviction of second-degree murder, Karapetyan filed a habeas petition claiming that the court erred in giving and failing to give correct instructions and in allowing Karapetyan's admissions as evidence for the jury to consider. Karapetyan, also, claims that he suffered violations of his constitutional rights, as counsel gave him ineffective assistance.
Natural and Probable Consequences Doctrine of Aiding and Abetting
The jury instructions regarding the natural and probable consequences doctrine of aiding and abetting did not deny Karapetyan his rights to a jury trial and due process. Karapetyan challenged the original instruction, given orally and in writing. It did not specify that the jury had to find the co-principal and Karapetyan guilty of the same crime under the doctrine of natural and probable consequences. Before the jury started deliberations, the prosecutor asked for a change in the instructions to indicate that the jury must find the co-principal and Karapetyan guilty of the same crime. The court gave a modified, incorrect instruction orally:
If you find that a co-defendant committed the crime of voluntary manslaughter, then the defendant is guilty of voluntary manslaughter. If you find that a co-defendant -- co-principal committed the crime of voluntary [sic] manslaughter, then the defendant is guilty of voluntary [sic] manslaughter.
Before the jury started deliberations, the court gave the instruction correctly: If you find that a co-principal committed the crime of voluntary manslaughter, then the defendant is guilty of voluntary manslaughter.
If you find that a co-principal committed the crime of involuntary manslaughter, then the defendant is guilty of involuntary manslaughter.
The written instruction was the same as the correct, oral instruction. When the jury asked the court about this doctrine, the court referred to the written instructions.
The jury convicted Karapetyan of second-degree murder and the co-defendant of voluntary manslaughter. The court's instructions to the jury gave three theories for finding Karapetyan guilty of second-degree murder, one as a direct perpetrator and two as an aider and abettor. The jury could have convicted Karapetyan of second-degree murder as a direct perpetrator and not for aiding and abetting.
Karapetyan contends that the jury probably did not convict Karapetyan of second-degree murder as a direct perpetrator, because a witness stated that Karapetyan struck the victim in the back with a knife. Karapetyan, also, argues that he and a witness saw another person with a screwdriver. However, the victim had a possibly fatal wound to his back, and the jury could have found that Karapetyan's act of striking the victim in the back with a knife caused victim's death.
Imperfect Defense of Others
Since the evidence was insufficient for an instruction on imperfect defense of others, the court did not deprive Karapetyan his right to a complete defense by not giving the instruction. The defense applies when one has an actual, unreasonable belief he must defend another from imminent danger or death or great bodily injury. Menendez v. Terhune, 422 F.3d 1012, 1028 (9th Cir. 2005). Karapetyan did not make a showing that he actually believed peril to be imminent. Thus, the court did not err in failing to give the instruction. Menendez, 422 F.3d at 1028.
Defendants may assert inconsistent defenses. United States v. Demma, 523 F.2d 981, 985 (9th Cir. 1975). However, the court did not err in failing to give the instruction, because there was not sufficient evidence to warrant jury consideration, therefore, no instruction was required. Menendez, 422 F.3d at 1028. Karapetyan did not testify that he believed that the victim would inflict great bodily injury or use deadly force or that either of his sons was in danger. He testified that he stayed in a car because he was afraid someone would attack him and only tried dividing the victim and his sons.
Error in failing to instruct on imperfect defense of others is state error alone subject to a harmless error test under the California Constitution. People v. Randle, 35 Cal. 4th 987, 1003, 28 Cal. Rptr. 3d 725, 732 (2005). An error in a state court determination of whether state law allows an instruction ...