FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a sentence of twenty-five years to life in prison following her 2006 conviction on charges of attempted murder, attempted kidnapping for the purpose of robbery, conspiracy to commit murder, assault with a deadly weapon, and attempted robbery. Petitioner raises four claims in her amended petition, filed August 18, 2008. First, petitioner claims that the jury was given an improper instruction on aggravated kidnapping. Second, petitioner claims that there was insufficient evidence to support the conviction for aggravated kidnapping. Third, petitioner seeks reconsideration of a California Supreme Court decision interpreting CALCRIM 404.*fn1 Finally, petitioner claims that the jury was improperly instructed on aider and abettor liability under the doctrine of natural and probable consequences in that the instruction permitted a finding of guilt on the charge of attempted murder without a finding that petitioner premeditated the attempted murder.
A. The Prosecution's Case
L.R. dated Buford before she became pregnant with his child in February 2004. As the pregnancy progressed, Buford told L.R. she should have an abortion. L.R. wanted to have the baby and told Buford that he could "just pay child support" if he "didn't want to be there." Buford acted indifferently and began to deny that the child was his. When L.R. was about five months pregnant, L.R. and Buford broke off their relationship.
At some time in the weeks leading up to the assault, L.R. called Buford's cell phone. A woman answered and identified herself as Buford's sister. The same woman, whose voice L.R. identified as Russell's, called L.R. to ask about the baby and the identity of the father. She continued to make harassing phone calls to L.R., calling her a "bitch" and threatening to kill L.R. and her baby.
Before the assault, L.R. told Buford that he had $700 and was willing to lend him money to repair his car. She lived with her grandmother and kept the money there.
Boone testified pursuant to her agreement to cooperate with the district attorney's office. She and Buford were "best friends." On September 20, 2004, five days before the assault and kidnapping, Buford asked Boone to "beat somebody up." She agreed to help him. In subsequent conversations, Boone learned that Buford and
L.R. had argued over whether he was the baby's father.
Between September 20 and September 25, Buford and Boone devised a plan. Buford would invite L.R. to the movies but take her to a park where Boone would beat her up. The goal was to force L.R. to have a miscarriage. Boone asked [petitioner] to help beat up L.R. and she agreed.
At about 8:00 p.m. on September 25, 2004, Buford picked up L.R. at her home for the ostensible purpose of taking her to the movies. He was driving a white Chevrolet Malibu. Curry, whom L.R. knew through Buford as "Pacman," was sitting in the back seat. Buford picked up [petitioner], who joined Curry in the back seat, then drove to a liquor store. After Buford, Curry and [petitioner] bought liquor, everyone changed seats. [Petitioner] drove with Curry beside her. Buford and L.R. were in the back seat. Instead of going to the movies, defendants drove L.R. to a park in Elk Grove.
Buford and [petitioner] informed Boone of their whereabouts by cell phone, while she waited for their arrival at the park. Buford, Curry and [petitioner] drank behind some bushes and L.R. sat by herself. Eventually, L.R. told Buford she wanted to go home and he agreed to drive her back. Buford had his arm around L.R.'s waist, but turned sideways as they walked.
When Buford gave the signal, Boone and [petitioner] ran in front of him and L.R., turned, and Boone sprayed L.R. in the face with mace. Boone also hit L.R. in the face. L.R. tried to fight back but was blinded by the mace. [Petitioner] joined in the fray and punched L.R. in the face. L.R. fell to the ground. L.R. told her attackers that she was pregnant. When L.R. asked Buford for help, he responded, "[J]ust fight back."
The attack continued while L.R. was on the ground. Curry kicked her in the side. He also threw a garbage can at L.R., hitting her in the head. Boone removed L.R.'s tennis shoes and someone took her cell phone. At that point, Boone and Russell left in the Malibu by themselves. They drove north on Interstate 5 toward Meadowview where Russell's grandmother lived.
Back at the park, L.R. asked Buford to call an ambulance and he said, "Okay." However, instead of calling the ambulance, Buford called Boone and told her to "come back and finish the job." Boone asked Buford if he was trying to kill L.R., and Buford said, "[N]o, just the baby." He wanted Boone to continue, "as long as that baby gets up out of her." While [petitioner] and Boone were driving back to the park, Buford called again to tell them to bring a baseball bat and flashlight from the car.
Boone and [petitioner] approached L.R. at the park carrying a flashlight and baseball bat. Boone struck L.R.'s leg with the bat and [petitioner] hit her in the head with the flashlight. The women told L.R. that Buford was not the father of her baby and he was not going to pay child support. L.R. named someone else as the baby's father because she wanted the beating to stop.
Boone testified that while [petitioner] and L.R. continued to fight, Curry hit L.R. in the head, knocking her to the ground. Boone also stated that Curry kicked L.R. with both feet as she lay on the ground saying, "Help me, my baby." L.R. lost consciousness while she was on the ground.
Boone and Curry began searching L.R.'s clothing for money. Boone took $20 that they found inside L.R.'s bra. Changing her earlier testimony that she first learned of L.R.'s $700 in the car after they all left the park, Boone stated on redirect examination that Buford and Curry were looking for the $700 when Curry pulled L.R.'s clothes off. Curry removed L.R.'s pants and someone removed her socks. The defendants carried L.R. to the Malibu.
Once inside the car, Buford showed Boone and Russell a picture of the $700 on his cell phone, an image he had received from L.R. Athough L.R. was not fully conscious, Buford suggested that they get the money from L.R.'s house by having her call her brother and asking him to bring it to the car.
Curry drove to [petitioner]'s apartment to get clean pants and underwear for L.R. [Petitioner]'s roommate brought the clothes to the car and Boone and Russell put them on L.R. in the back seat of the car. [Petitioner] put a BB gun on her lap to scare L.R.
Curry continued to drive. [Petitioner], Boone and Curry bought and smoked marijuana with the $20 they had taken from L.R. When someone looked in the car, [petitioner] stated, "See what we do? See how we beat up bitches?' They let L.R. out of the car to urinate near a tree, but Boone and [petitioner] stood next to her.
Once L.R. was awake, the defendants turned their attention to the money. Boone and [petitioner] told L.R. that she "better find some way" to retrieve the $700. Someone handed L.R. a cell phone and ordered her to call home. L.R. telephoned her grandmother and told her to send L.R.'s brother outside with her purse.
L.R.'s grandmother stepped outside of the house at 1:00 a.m. and saw the Malibu approaching. Curry sped away and L.R. called her grandmother again, telling her to send L.R.'s brother to the car with the money. Sensing trouble, L.R.'s grandmother asked if she was being held against her will. L.R. said that she was.
Curry pulled up again and L.R.'s brother approached the car. When he saw that L.R.'s face was bruised and bleeding, he told the occupants of the car to let her out. Instead, Curry drove off with L.R.'s brother holding onto the car door. L.R.'s grandmother called 911 when L.R.'s brother came inside.
L.R. asked to be taken to a hospital, but Curry refused. After discussing alternatives, the defendants left L.R. by the side of the road. Curry drove to [petitioner]'s apartment where he, [petitioner] and Boone spent the night.
L.R. walked to a nearby apartment where a resident found her and called 911. L.R. had bruises on her face and stomach and was fading in and out of consciousness. An ambulance transported her to the hospital.
Doctors treated L.R. for a fractured eye socket and extensive bleeding inside the eye. She was still experiencing double vision at the time of trial. The doctors drained blood from both of L.R.'s swollen ears. They noticed abrasions on L.R.'s face, abdomen and buttocks, and bruises all over her body.
Fetal heart monitors indicated that L.R.'s unborn baby was in distress and not receiving enough oxygen. L.R. was nearly 32 weeks pregnant at the time of the assault and had not experienced any problems with her pregnancy. Doctors delivered the baby by emergency Cesarean section. The baby had an initial APGAR score of 1 on a scale of 1 to 10. A normal baby has an initial APGAR score of 7 or 8. Doctors placed the baby on a mechanical ventilator for 48 hours and supplied oxygen through its nasal passages for another five days. The baby remained in the hospital for three weeks.
D. [Petitioner]'s Defense:
[Petitioner] testified that she spoke to L.R. one time before the assault. She was on the speaker phone during a conversation between Boone and L.R. Boone and L.R. were arguing over Buford and L.R. challenged Boone to a fight.
On the night of the assault, [petitioner] drove the Malibu with Buford, Curry and L.R. in the car. She stopped at a liquor store and bought three bottles of Mad Dog 20/20. Buford bought a Sprite. [Petitioner] and Boone shared one bottle; Curry drank the second bottle; and all three of them shared the third bottle. [Petitioner] testified that she took Ecstacy that night. She also felt "out of character" because she does not drink.
[Petitioner] testified that she did not know that Boone was going to fight L.R. until they arrived at the park and Boone said, "I'm going to fuck this bitch up." [Petitioner] offered to assist if she needed help. She admitted socking L.R. in the face after L.R. bumped into her in what she described as a "cat fight." Like Curry, [petitioner] claimed that she did not realize L.R. was pregnant until L.R. fell to the ground. She testified that L.R. wore a pea coat that concealed her stomach.
[Petitioner] recounted that Buford had called Boone after they left the park the first time and told them to return to "finish the job." According to [petitioner], it was the first time she realized that Buford wanted to force L.R. to have a miscarriage. [Petitioner] testified that at that point, she still felt the effects of the alcohol and Ecstacy, but "[n]ot . . . to the point where [she] didn't know what [she] was doing."
[Petitioner] testified that she retrieved the baseball bat and flashlight from the back seat of the Malibu, but denied hitting L.R. with the flashlight. Russell and Boone put L.R. in the back seat of the Malibu while she was unconscious.
After everyone was in the car, Buford said L.R. had money and showed them the photo on his cell phone. [Petitioner] told L.R. that she wanted the money and L.R. agreed to get it. [Petitioner] assumed she agreed because she did not want to suffer another beating. [Petitioner] acknowledged that there was a BB gun in the car, but claimed she never threatened L.R. with it. [Petitioner] stated that the sole purpose of placing L.R. in the car was to take her home and that she never intended to force L.R. to stay in the car to rob her. According to [petitioner], no one told Curry where to take L.R. after they drove away from L.R.'s house the second time. Later that night, Curry bragged that he rendered L.R. unconscious and complained that he got her blood on his shoes.
People v. Curry et al., slip op. at 3-8, 10-12, as modified on denial of rehearing, Jan. 23, 2008, at 2, ¶¶ 1, 2.
I. Standards for a Writ of ...