                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 13 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MARCOS EDUARDO MENDIOLA,                         No. 10-55748

              Petitioner - Appellant,            D.C. No. 3:09-cv-01442-MMA-
                                                 AJB
  v.

ANTHONY HEDGPETH, Warden,                        MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Michael M. Anello, District Judge, Presiding

                       Argued and Submitted March 5, 2013
                              Pasadena, California

Before: PAEZ and WATFORD, Circuit Judges, and KENNELLY, District Judge.**

       Marcos Mendiola appeals from the district court’s denial of his 28 U.S.C.

§ 2254 habeas corpus petition. Mendiola argues that the state trial court erred

when it instructed the jury that it could consider whether voluntary intoxication


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
negated Mendiola’s ability to form the specific intent necessary to commit murder

and carjacking, but then failed to further instruct the jury on the lesser-included

offenses of involuntary manslaughter and assault.

      Even assuming that Mendiola had a basis to argue that the omission of these

instructions constituted error under federal law, we agree with the district court that

any such error was harmless under Brecht v. Abrahamson, 507 U.S. 619, 637

(1993). As the California Court of Appeal recognized, Mendiola did not actually

develop evidence to support an intoxication defense at trial. The evidence in the

record establishes only that Mendiola had smoked methamphetamine shortly

before the crime occurred. But there was no testimony, including from Mendiola

himself, to suggest that Mendiola had used methamphetamine to the point of

impairing his functioning or judgment. Indeed, Mendiola’s description of

conscious decisions he made—such as abandoning the car because he knew that

police would be in the area and likely to pull him over—clearly undermined any

contention that he was too intoxicated to form a specific intent to commit the

murder and carjacking.

      Moreover, the jury’s verdict included a special allegation finding that

Mendiola had committed the murder “with the specific intent to promote, further,

or assist in any criminal conduct by gang members” within the meaning of


                                           2
California Penal Code section 186.22(b)(1). It is evident from this finding that the

jury concluded that intoxication did not prevent Mendiola from acting with specific

intent at the time the crime occurred. (Although the California Court of Appeal

reversed this finding, it did so on the ground that there was insufficient evidence

that the gang with which Mendiola was alleged to be affiliated fell within the

statutory definition, and that conclusion has no bearing on the inference we are

drawing from the jury’s intent finding.)

      Given this record, the omission of instructions on lesser-included offenses

could not have had a “substantial and injurious effect or influence in determining

the jury’s verdict.” Brecht, 507 U.S. at 637 (internal quotation marks omitted).

      AFFIRMED.




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