United States District Court, C.D. California
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE JUDGE
V. SELNA UNITED STATES DISTRICT JUDGE
to 28 U.S.C. § 636, the Court has reviewed the Petition,
records on file and the Report and Recommendation of United
States Magistrate Judge. Further, the Court has engaged in a
de novo review of those portions of the Report to
which petitioner has made objections.
objections raise three major points. First, petitioner
contends that the evidence presented at trial was
insufficient to support his conviction of second-degree
murder under a theory of aiding and abetting. (Objections at
4-5.) It was not objectively unreasonable for the California
Court of Appeal to conclude that the evidence presented at
trial was sufficient for a reasonable jury to find aiding and
abetting: Petitioner instigated the attack, was present when
the shooter shot the victim, failed to take any steps to
prevent the shooting, provided companionship to the shooter,
chased after the victim's truck, and fled the scene with
the shooter. Petitioner also made false statements to
investigators permitting an inference of consciousness of
guilt. Although petitioner points out that there was no
evidence of him providing, possessing, or shooting the gun,
no such evidence was required under the prosecutor's
theory of aiding and abetting. Moreover, although petitioner
disputes whether the evidence established that he chased the
victim's truck, an eyewitness testified that petitioner
did chase the victim's truck for a minute after the
shooter pulled out the gun.
petitioner appears to contend that an erroneous instruction
on felony murder given during his trial was not harmless.
(Objections at 5-11.) It was not objectively unreasonable for
the California Court of Appeal to conclude that the error in
giving the felony murder instruction was harmless beyond a
reasonable doubt because the jury had to have found that
petitioner aided and abetted a murder under a valid theory of
implied malice. By continuing to chase the victim after
seeing the shooter pull out and brandish a gun, petitioner
performed an act that is dangerous to life and did so knowing
of the danger and with conscious disregard for life.
Petitioner now appears to contend that under California law,
such a theory of implied malice is improper for an aider and
abettor, and that the jury should have been instructed it
could find only express malice (i.e., intent to kill).
Petitioner is incorrect. See People v. Chun, 45
Cal.4th 1172, 1205 (2009) ("No juror could have found
that defendant participated in this shooting, either as a
shooter or as an aider and abettor, without also
finding that defendant committed an act that is dangerous to
life and did so knowing of the danger and with conscious
disregard for life - which is a valid theory of
malice.") (Emphasis added.)
petitioner appears to claim that the use of implied malice as
a theory of murder in California is unconstitutional in two
respects. (Objections at 11-18.) Although this claim is
unexhausted, "it is perfectly clear that [petitioner]
does not raise even a colorable federal claim." See
Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005).
argument that implied malice is an invalid theory of murder
i: foreclosed by the fact that the Court is bound by the
California Court of Appeal': conclusion that petitioner
was convicted under a valid theory of murder as a matte: of
California law. See Bradshaw v. Richey, 546 U.S. 74,
76 (2005) (state court': interpretation of state law
binds a federal court on habeas review); Wainwright v
Goode, 464 U.S. 78, 84 (1983) ("[T]he views of the
state's highest court witl respect to state law are
binding on the federal courts."). The Supreme Cour
"repeatedly has held that state courts are the ultimate
expositors of state law, ' particularly criminal law.
See Mullaney v. Wilbur, 421 U.S. 684, 691 (1975
(accepting as binding state court's construction of state
homicide law); see alsc Martin v. Ohio, 480 U.S.
228, 232 (1987) (noting the "preeminent role of the
State: in preventing and dealing with crime and the
reluctance of the Court to disturb i State's
decision with respect to the definition of criminal
conduct"); Powell v. Stah of Texas, 392 U.S.
514, 535-36 (1968) (defining the elements of a crime anc
defenses "has always been thought to be the province of
the States"). "California courts have long held
that malice may be implied where a defendant with;
sufficiently culpable mental state does an act involving a
high probability that deatl will result." Mason v.
Thurman, 996 F.2d 1003, 1007 (9th Cir. 1993).
related argument that the doctrine of implied malice i:
unconstitutionally vague - because it does not provide
adequate notice of when ai act is performed with
"conscious disregard for human life" - is
meritless. Tb Ninth Circuit has rejected a similar argument.
See Masoner, 996 F.2d at 1006-0* (rejecting
vagueness challenge to jury instruction on implied malice).
Moreover the Supreme Court has commented: "As a general
matter, we do not doubt ttu constitutionality of laws that
call for the application of a qualitative standard sucl as
'substantial risk' to real-world conduct; 'the
law is full of instances where i man's fate
depends on his estimating rightly . . . some manner of
degree.'" Johnsoi v. United States, 135
S.Ct. 2551, 2561 (quoting Nash v. United States, 229
U.S. 373, 377 (1913)). The legal standard for implied malice
used in petitioner's trig applied a qualitative standard
to his real-world conduct and therefore was nc
petitioner's objections are overruled.
THEREFORE IS ORDERED that (1) the Report and Recommendation c
the Magistrate Judge is accepted and adopted; (2)
petitioner's request for a evidentiary hearing is denied;
and (3) Judgment shall be ...