Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, Torres' request for oral argument is denied.
D.C. No. CV-98-02251-EJG
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 (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)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 Eastern District of California, Edward J. Garcia, District Judge, Presiding.
Before PREGERSON, KLEINFELD, and GOULD, 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 Joe Torres appeals the district court's denial of his 28 U.S.C. § 2254 petition challenging his conviction for first degree murder, assault with a deadly weapon and use of a firearm. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review a district court's denial of a section 2254 petition de novo, see Duckett v. Godinez, 67 F.3d 734, 739 (9th Cir.1995), and we affirm.
Torres contends that his due process rights were violated because there was insufficient evidence of premeditation and deliberation to support his conviction for first degree murder. Viewing the evidence in a light most favorable to the prosecution, see Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Mayfield, 14 Cal.4th 668, 767 (1997), we conclude that Torres' claim is without merit.
The record reflects that Torres approached his potential victims to play pool and when they refused, he threatened to "put [the victim(s) ] brains against the wall". Witnesses testified that Torres appeared to be looking for something in his fanny pack, but it appeared "flattened." Torres eventually left the group alone. Witnesses then testified that minutes later Torres returned "in a hurry", and "with some intention." Torres walked straight into the group and grabbed one of the victims by his shirt, removed a gun from his fanny pack, placed it six inches from his victim's face and stated, "you don't think that I would put your brains against the wall. You don't think that I would do that?" The testimony then establishes that Torres waived the gun at one other victim while repeating his threat. Torres then "extended his arm over [his first victim's] shoulder ... and fired ... almost without hesitation." Judged by the elements defined in California's law, see Jackson, 443 U.S. at 324 n. 16, the jury could have concluded that Torres committed first degree murder, see Mayfield, 14 Cal.4th at 768-69 (finding premeditation and deliberation where the manner of killing was consistent with a preconceived design to take victim's life).
Torres also contends that his due process rights were violated because there was insufficient evidence to support his conviction for assault with a deadly weapon. Viewing the evidence in a light most favorable to the prosecution, see Jackson, 443 U.S. at 319; Mayfield, 14 Cal.4th at 767, we conclude that this claim is also without merit. Torres held a semiautomatic weapon six inches from his victims's face while threatening to take his life. Accordingly, judged by the elements defined in California's law, see Jackson, 443 U.S. at 324 n. 16, the jury could have concluded that Torres committed assault with a deadly weapon on his first victim. See Jackson, 443 U.S. at 319; People v. Ingram, 91 Cal.App.2d 912 (1949) (affirming conviction where defendant waived a weapon, threatened victim and then shot at floor close to the victim).
Although raised in the state court, Torres' remaining contention that the case should be remanded to the trial court to strike the use enhancement because it is an element of the offense of assault with a deadly weapon, was not raised in his section 2254 petition before the district court. Accordingly, it is not properly before us on appellate review. See Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir.1996) (claim barred for failure to raise in federal habeas petition).