Michael J. Marks v. MARTIN BITER, Acting Warden, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL J. MARKS,
Petitioner - Appellant,
v.
MARTIN BITER, Acting Warden,
Warden and MATTHEW CATE,
Secretary, California Department of
Corrections and Rehabilitation,
Respondents - Appellees.
No. 10-55514
D.C. No. 2:07-cv-05143-SJO-
AGR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted June 3, 2013**
Pasadena, California
Before: THOMAS, SILVERMAN, and FISHER, Circuit Judges.
Petitioner Michael J. Marks appeals from the district court’s denial of his 28
U.S.C. § 2254 petition for a writ of habeas corpus. A jury in California Superior
FILED
JUN 06 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Court found Marks guilty of two counts of willful, deliberate, and premeditated
attempted murder with malice aforethought (California Penal Code §§ 187(a), 664)
and one count of kidnapping (California Penal Code § 208(b)). The jury also
found true the special allegation that Marks personally inflicted great bodily injury
on one of the victims (California Penal Code § 12022.7(d)).
Marks argued on direct appeal and again in his federal habeas petition that
the state trial court prejudicially erred when it failed to sua sponte instruct the jury
regarding the defense of unconsciousness (CALJIC 4.30). The district court
denied Marks’s petition, agreeing with the California Court of Appeal that the
omission of the instructions did not prejudice Marks. We have jurisdiction under
28 U.S.C. § 2253 and now affirm.
To obtain habeas relief premised on the omission of a jury instruction,
Marks must show “that the alleged instructional error had substantial and injurious
effect or influence in determining the jury’s verdict.” Byrd v. Lewis, 566 F.3d 855,
860 (9th Cir. 2009) (quoting Clark v. Brown, 450 F.3d 898, 905 (9th Cir. 2006));
see Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). Marks cannot make this
showing because the jury necessarily rejected the possibility that Marks was “not
conscious of acting” when it found that his attempted murder was willful,
deliberate, and premeditated. In doing so, the jury necessarily found that Marks
had a “deliberate intent to kill, which was the result of deliberation and

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premeditation,” and that this deliberate intent was “formed upon pre-existing
reflection and not under a sudden heat of passion or other condition precluding the
idea of deliberation.” CALJIC 8.67; Cal. Penal Code § 664. These findings are
mutually exclusive of unconsciousness.
AFFIRMED.

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