Marcos Eduardo Mendiola v. ANTHONY HEDGPETH, Warden

* 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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCOS EDUARDO MENDIOLA,
Petitioner - Appellant,
v.
ANTHONY HEDGPETH, Warden,
Respondent - Appellee.
No. 10-55748
D.C. No. 3:09-cv-01442-MMA-
AJB
MEMORANDUM*
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
FILED
MAR 13 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
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 of 3 --

3
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.

-- 3 of 3 --