(HC) Bradley v. Kibler ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIE E. BRADLEY, No. 2:22-cv-0197 KJM DB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 BRIAN KIBLER, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a 18 writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his conviction imposed by 19 the Solano County Superior Court in 2019 for first degree felony murder. Petitioner alleges his 20 due process rights were violated because: (1) there was insufficient evidence to support the jury’s 21 finding that he acted with “reckless indifference to human life,” and (2) the trial court refused to 22 instruct the jury on attempted robbery as a lesser included offense of felony murder. For the 23 reasons set forth below, this court will recommend the petition be denied. 24 BACKGROUND 25 I. Facts Established at Trial 26 The California Court of Appeal for the First Appellate District provided the following 27 factual summary: 28 //// 1 Defendants1 and at least one other individual, Daniel Glass, attempted to rob L.V. and her cousin, Robby Poblete, while they 2 were waiting in their vehicle to purchase marijuana. During the course of that robbery, Poblete was shot and killed. 3 Defendants were initially charged by information with murder (Pen. 4 Code,1 § 187, subd. (a); count 1) and attempted second degree robbery (§§ 664, 211; count 2). Defendant Mason also was charged 5 by information with assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 3). The information alleged felony- 6 murder special circumstance allegations (§ 190.2, subd. (a)(l7)) and personal gun use allegations (§§ 12022.5, subd. (a); 12022.53, subd. 7 (b)). While Glass was charged in the initial felony complaint, he reached a plea deal with the prosecution and was not charged in the 8 information. 9 During defendants’ initial trial, the California Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), 10 which amended the felony-murder rule and the natural and probable consequences doctrine, as it relates to murder. (People v. Cooper 11 (2020) 54 Cal.App.5th 106, 113, review granted Nov. 10, 2020, S264684.) The bill, in relevant part, amended section 189 to provide 12 that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless he or she “was a 13 major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 14 190.2.” (§ 189, subd. (e)(3).) 15 In part due to anticipation of Senate Bill 1437, the district attorney filed an amended information recharging defendants with murder, 16 but removing all reference to the attempted robbery. After passage of Senate Bill 1437, defendants moved for mistrial because “the trial 17 related proceedings to date have proceeded on the basis of a ‘felony- murder’ rule that is no longer valid.” The court granted defendants’ 18 motion for mistrial. 19 Glass testified at trial against defendants. On the day of the shooting, Glass testified, he saw defendants while stopped at a gas station. 20 Glass and defendants were on friendly terms and would “chill” together. Glass asked defendants if they wanted to ride with him, and 21 they agreed. While driving, Glass received a call on his cell phone from Gover. Gover asked Glass if he was interested in robbing 22 someone for money. Glass put his phone on speaker and asked for more details. Gover informed them a man and woman would be in a 23 truck at a Howard Johnson Inn, and they may be able to steal approximately $18,000. Both defendants indicated to Glass they 24 wanted to proceed with the robbery, and Glass drove toward the Howard Johnson Inn. He parked in the Grocery Outlet parking lot, 25 which is adjacent to the Howard Johnson Inn. All three individuals had firearms. 26 Defendants and Glass did not discuss the robbery until they arrived 27 at the hotel. Upon arriving, Glass testified, defendant Bradley told 28 1 Petitioner was tried jointly with co-defendant Mason. 1 him to go to the passenger side door, and defendants would go to the driver’s side door. As Glass and defendants walked through the hotel, 2 Glass separated from defendants. Glass testified he walked past the truck, lingered by an open conference room door, and then walked to 3 the passenger side of the truck. Glass stated he saw defendants walking toward the truck, and he asked L.V., who was sitting in the 4 passenger seat of the truck, for a lighter. Glass testified he then pulled out his gun and pointed it at L.V.’s chest and face. She screamed, and 5 he told her to be quiet and not look at him. 6 Glass testified defendants had, by then, approached the driver’s side door with their guns drawn. They repeatedly instructed Poblete to 7 raise his hands, but he only raised one hand. Glass observed Poblete moving his right hand around by his lap. Glass then saw Poblete 8 standing outside the truck with the door open and heard subsequent gunshots. After hearing the gunshots, Glass testified he crouched 9 down and ran back to his vehicle. He saw defendants running in front of him. When a man attempted to stop them, defendant Mason 10 shoved the man out of the way, and they continued to Glass's vehicle and left the scene. When Glass asked defendants what had happened, 11 defendant Bradley replied that Poblete “had a gun.” 12 L.V. also testified regarding the attempted robbery. She stated Poblete encouraged her to purchase marijuana from his “really good 13 friend” because the friend could offer a better price than a dispensary. L.V. agreed, and they drove to and parked in the Howard Johnson 14 Inn parking lot facing the swimming pool. After they parked, Poblete removed his gun from the center console of his vehicle and placed it 15 under his thigh. Approximately 20 minutes later, L.V. noticed a group of young men in the parking lot. She believed it was either four 16 or five individuals. One of the men approached her side of the vehicle and asked if she had a lighter. She testified that when she responded 17 affirmatively, he called over the other men. L.V. stated the first individual then put a gun to her chest and stated, “Don’t fucking 18 move.” She testified she looked down and did not move apart from glancing slightly toward Poblete. She also believed another 19 individual approached her side of the vehicle from behind, outside of her line of vision, and pointed a gun at her head. 20 L.V. testified she saw Poblete attempting to grab his gun. At that 21 same time, at least two men approached the driver's side of the vehicle. Because she did not move after the gun was pointed at her, 22 L.V. was unsure of how the individuals approached the driver's side but believed they went around the back of the truck. She testified 23 those individuals then opened the driver’s side door while yelling at Poblete and holding guns. She stated they started dragging Poblete 24 out of the truck, someone yelled “[s]top, stop,” and shortly thereafter she heard three gunshots. The men then fled from the scene. She 25 called 911. 26 Officers responded to L.V.’s 911 call and found Poblete on the ground suffering gunshot wounds. To the left of Poblete’s left hand, 27 officers located a small handgun. Police were able to identify Glass and defendants from surveillance video from the hotel. However, no 28 surveillance video captured the actual shooting. 1 A jury convicted defendants of felony murder and found defendant Mason guilty of assault by means likely to produce great bodily 2 injury. The court sentenced defendants to 25 years to life. It also imposed an additional eight years on defendant Mason for his assault 3 conviction and the great bodily injury enhancement. 4 People v. Bradley, 65 Cal.App.5th 1022, 1026-28 (2021). 5 II. Procedural Background 6 A. Judgment and Sentencing 7 On April 15, 2019, a jury convicted petitioner of first degree felony murder. (ECF No. 8 19-2 at 266.2) On November 5, 2019, the court sentenced him to an indeterminate term of 25 9 years to life. (ECF No. 19-3 at 91-92.) 10 B. State Appeal and Federal Proceedings 11 On June 24, 2021, the California Court of Appeal affirmed the judgment in a published 12 opinion. People v. Bradley, 65 Cal. App. 5th 1022 (2021). The California Supreme Court 13 summarily denied petitioner’s petition for review on September 15, 2021. (ECF No. 19-8.) 14 On March 2, 2022, petitioner filed the present habeas corpus petition in this court raising 15 two exhausted claims.3 (ECF No. 1.) Respondent filed an answer (ECF No. 17) and petitioner 16 filed a traverse (ECF No. 24). 17 STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS 18 An application for a writ of habeas corpus by a person in custody under a judgment of a 19 state court can be granted only for violations of the Constitution or laws of the United States. 28 20 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or 21 application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 22 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000). 23 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas 24 corpus relief: 25 2 Respondent lodged the state court record. (See ECF No. 19.) Herein, this court cites to the 26 electronic filing numbers and pagination. 27 3 In addition to the pro se pleadings filed in federal court, this court considers the arguments made in petitioner’s state court appellate briefs (ECF Nos. 19-22, 19-24) and his petition for review 28 (ECF No. 19-26) to the California Supreme Court. 1 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 2 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 3 (1) resulted in a decision that was contrary to, or involved an 4 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 5 (2) resulted in a decision that was based on an unreasonable 6 determination of the facts in light of the evidence presented in the State court proceeding. 7 8 For purposes of applying § 2254(d)(1), “clearly established federal law” consists of 9 holdings of the United States Supreme Court at the time of the last reasoned state court decision. 10 Greene v. Fisher, 565 U.S. 34, 37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) 11 (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “‘may be 12 persuasive in determining what law is clearly established and whether a state court applied that 13 law unreasonably.’” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th 14 Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle 15 of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not 16 announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 567 U.S. 17 37 (2012)). Nor may it be used to “determine whether a particular rule of law is so widely 18 accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be 19 accepted as correct.” Id. at 64. Further, where courts of appeals have diverged in their treatment 20 of an issue, it cannot be said that there is “clearly established Federal law” governing that issue. 21 Carey v. Musladin, 549 U.S. 70, 76-77 (2006). 22 A state court decision is “contrary to” clearly established federal law if it applies a rule 23 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court 24 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003) 25 (quoting Williams, 529 U.S. at 405-06). “Under the ‘unreasonable application’ clause of § 26 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct 27 governing legal principle from th[e] [Supreme] Court's decisions, but unreasonably applies that 28 principle to the facts of the prisoner's case.’” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) 1 (quoting Williams, 529 U.S. at 413); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). “[A] 2 federal habeas court may not issue the writ simply because that court concludes in its independent 3 judgment that the relevant state-court decision applied clearly established federal law erroneously 4 or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411; 5 see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Andrade, 538 U.S. at 75 (“It is not 6 enough that a federal habeas court, in its independent review of the legal question, is left with a 7 firm conviction that the state court was erroneous.” (Internal citations and quotation marks 8 omitted.)). “A state court's determination that a claim lacks merit precludes federal habeas relief 9 so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision.” 10 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 11 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a 12 state prisoner must show that the state court's ruling on the claim being presented in federal court 13 was so lacking in justification that there was an error well understood and comprehended in 14 existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. 15 There are two ways a petitioner may satisfy subsection (d)(2). Hibbler v. Benedetti, 693 16 F.3d 1140, 1146 (9th Cir. 2012). He may show the state court’s findings of fact “were not 17 supported by substantial evidence in the state court record” or he may “challenge the fact-finding 18 process itself on the ground it was deficient in some material way.” Id. (citing Taylor v. Maddox, 19 366 F.3d 992, 999-1001 (9th Cir. 2004), abrogated by Murray v. Schriro, 745 F.3d 999-1000 (9th 20 Cir. 2014)4); see also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir. 2014) (If a state court makes 21 factual findings without an opportunity for the petitioner to present evidence, the fact-finding 22 process may be deficient and the state court opinion may not be entitled to deference.). Under the 23 4 In Kipp v. Davis, 971 F.3d 939, 953 n.13 (9th Cir. 2020), the Court of Appeals explained the 24 effect of the decision in Murray on Taylor: In Murray I, we recognized that Pinholster foreclosed Taylor’s suggestion that an 25 extrinsic challenge, based on evidence presented for the first time in federal court, may occur once the state court's factual findings survive any intrinsic challenge under section 26 2254(d)(2). Murray I, 745 F.3d at 999–1000. Kipp does not present an extrinsic challenge 27 so Murray I’s abrogation of Taylor on this ground is irrelevant here. Similarly, in the present case, there is no extrinsic challenge based on evidence presented for the 28 first time in federal court, so Murray’s limitation of Taylor is not relevant. 1 “substantial evidence” test, the court asks whether “an appellate panel, applying the normal 2 standards of appellate review,” could reasonably conclude that the finding is supported by the 3 record. Hibbler, 693 F.3d at 1146. 4 The second test, whether the state court’s fact-finding process is insufficient, requires the 5 federal court to “be satisfied that any appellate court to whom the defect [in the state court’s fact- 6 finding process] is pointed out would be unreasonable in holding that the state court’s fact-finding 7 process was adequate.” Hibbler, 693 F.3d at 1146-47 (quoting Lambert v. Blodgett, 393 F.3d 8 943, 972 (9th Cir. 2004)). The state court’s failure to hold an evidentiary hearing does not 9 automatically render its fact finding process unreasonable. Id. at 1147. Further, a state court may 10 make factual findings without an evidentiary hearing if “the record conclusively establishes a fact 11 or where petitioner’s factual allegations are entirely without credibility.” Perez v. Rosario, 459 12 F.3d 943, 951 (9th Cir. 2006) (citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003)). 13 The court looks to the last reasoned state court decision as the basis for the state court 14 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 15 “[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from 16 a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the 17 reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en 18 banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim 19 has been presented to a state court and the state court has denied relief, it may be presumed that 20 the state court adjudicated the claim on the merits in the absence of any indication or state-law 21 procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be 22 overcome by showing “there is reason to think some other explanation for the state court's 23 decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). 24 Similarly, when a state court decision on a petitioner's claims rejects some claims but does not 25 expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that 26 the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 293 (2013). 27 When it is clear, that a state court has not reached the merits of a petitioner’s claim, the 28 deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court 1 must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 2 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003). 3 If a petitioner overcomes one of the hurdles posed by section 2254(d), the federal court 4 reviews the merits of the claim de novo. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 5 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear 6 both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is 7 such error, we must decide the habeas petition by considering de novo the constitutional issues 8 raised.”). For the claims upon which petitioner seeks to present evidence, petitioner must meet 9 the standards of 28 U.S.C. § 2254(e)(2) by showing that he has not “failed to develop the factual 10 basis of [the] claim in State court proceedings” and by meeting the federal case law standards for 11 the presentation of evidence in a federal habeas proceeding. See Cullen v. Pinholster, 563 U.S. 12 170, 186 (2011). 13 ANALYSIS 14 Petitioner contends his due process rights were violated because he was convicted on 15 insufficient evidence of intent and because the trial court refused to instruct the jury that 16 attempted robbery was a lesser included offense of felony murder. 17 I. Sufficiency of the Evidence of Intent 18 Petitioner argues the evidence did not show he had sufficient intent – reckless indifference 19 to human life – for a felony murder conviction. Rather, it showed that he intended only a robbery 20 and could not anticipate that the situation would become violent. (See Pet., ECF No. 1 at 10-15; 21 Pet. for Review, ECF No. 19-26 at 32-39.) 22 A. Decision of the State Court 23 The prosecution did not attempt to prove either defendant was the actual killer. Accordingly, defendants first argue the prosecution was 24 required to show they acted with reckless indifference to human life to support a felony-murder conviction.[n.4] They contend 25 insufficient evidence supports such a finding. We disagree. 26 1. Standard of Review 27 “In evaluating a claim regarding the sufficiency of the evidence, we review the record ‘in the light most favorable to the judgment below 28 to determine whether it discloses substantial evidence—that is, 1 evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a 2 reasonable doubt.’ ” (People v. Westerfield (2019) 6 Cal.5th 632, 712, 243 Cal.Rptr.3d 18, 433 P.3d 914.) “ ‘To assess the evidence's 3 sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the 4 crime ... beyond a reasonable doubt.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142, 233 Cal.Rptr.3d 324, 418 P.3d 263.) 5 “ ‘The standard of review is the same in cases in which the 6 prosecution relies mainly on circumstantial evidence.’ [Citations.] ‘We presume in support of the judgment the existence of every fact 7 the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, 8 reversal of the judgment is not warranted simply because the circumstances might also be reasonably reconciled with a contrary 9 finding.’ ” (People v. Westerfield, supra, 6 Cal.5th at pp. 712–713, 243 Cal.Rptr.3d 18, 433 P.3d 914.) 10 2. The Tison-Enmund [fn 5] Continuum 11 The law governing liability for felony murder is crafted by both U.S. 12 Supreme Court and California Supreme Court precedent. This court recently summarized the contours of the relevant law in In re Taylor 13 (2019) 34 Cal.App.5th 543, 246 Cal.Rptr.3d 342 (Taylor): “Beginning with the principle that ‘in capital cases above all, 14 punishment must accord with individual culpability,’ [People v.] Banks explained that the death penalty cannot be imposed based 15 solely on a defendant's ‘vicarious responsibility for the underlying crime.’ ([People v.] Banks [(2015)] 61 Cal.4th [788,] 801 [189 16 Cal.Rptr.3d 208, 351 P.3d 330].) Rather, to be sentenced to death, a defendant must, compared to ‘an ordinary aider and abettor to an 17 ordinary felony murder,’ have both a more culpable mind state— reckless indifference to the risk of death—and more substantial 18 involvement—as a major participant. (Id. at pp. 801–802 [189 Cal.Rptr.3d 208, 351 P.3d 330].) Because the United States Supreme 19 Court had ‘found it unnecessary to “precisely delineate the particular types of conduct and states of mind warranting imposition of the 20 death penalty,” ’ Banks concluded that ‘a jury presented with this question must consider the totality of the circumstances.’ (Banks, at 21 p. 802 [189 Cal.Rptr.3d 208, 351 P.3d 330], quoting Tison v. Arizona, supra, 481 U.S. at p. 158 [107 S.Ct. 1676] (Tison).) 22 Accordingly, Banks closely examined the facts in Enmund and Tison ‘[t]o gain a deeper understanding of the governing test and offer 23 further guidance.’ (Banks, at p. 801 [189 Cal.Rptr.3d 208, 351 P.3d 330].) 24 “In Enmund, the defendant learned that a man ‘was in the habit of 25 carrying large sums of cash on his person. A few weeks later, [the defendant] drove two armed confederates to [the man's] house and 26 waited nearby while they entered. When [the man's] wife appeared with a gun, the confederates shot and killed [the couple]. [The 27 defendant] thereafter drove his confederates away from the scene and helped dispose of the murder weapons, which were never found.’ 28 ([People v.] Banks, supra, 61 Cal.4th at p. 799 [189 Cal.Rptr.3d 208, 1 351 P.3d 330].) The United States Supreme Court reversed the death sentence, concluding that the Eighth Amendment barred such 2 punishment ‘for any felony-murder aider and abettor “who does not himself [or herself] kill, attempt to kill, or intend that a killing take 3 place or that lethal force will be employed.” ’ (Banks, at p. 799 [189 Cal.Rptr.3d 208, 351 P.3d 330].) 4 “In Tison, the defendants ‘helped plan and carry out the escape of 5 two convicted murderers from prison,’ one of whom had killed a guard during a previous escape. ([People v.] Banks, supra, 61 Cal.4th 6 at p. 802 [189 Cal.Rptr.3d 208, 351 P.3d 330].) ‘This entailed [the defendants’] bringing a cache of weapons to prison, arming both 7 murderers, and holding at gunpoint guards and visitors alike’ (Ibid.) During the escape, the defendants robbed and held at gunpoint an 8 innocent family ‘while the two murderers deliberated whether the family should live or die’ and the defendants ‘then stood by’ while 9 the murderers shot all four family members. (Ibid.) The United States Supreme Court affirmed the death sentences, holding that ‘ “major 10 participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund 11 culpability requirement.” ’ (Id. at p. 800 [189 Cal.Rptr.3d 208, 351 P.3d 330].) 12 “Comparing the facts in Enmund with those in Tison, [People v.] 13 Banks derived a nonexclusive list of factors bearing on whether an aider and abettor of felony murder was a ‘major participant’ under 14 section 190.2[, subdivision] (d): [fn. 6] ‘ “What role did the defendant have in planning the criminal enterprise that led to one or 15 more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular 16 dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant 17 present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a 18 particular role in the death? What did the defendant do after lethal force was used?” ’ ([People v.] Clark [(2016)] 63 Cal.4th [522,] 611 19 [203 Cal.Rptr.3d 407, 372 P.3d 811], quoting [People v.] Banks, supra, 61 Cal.4th at p. 803 [189 Cal.Rptr.3d 208, 351 P.3d 330].) 20 “Applying these factors, Banks held there was insufficient evidence 21 that the defendant in the case before it was a major participant in the underlying robbery. ([People v.] Banks, supra, 61 Cal.4th at p. 805 22 [189 Cal.Rptr.3d 208, 351 P.3d 330].) The evidence showed that the defendant had ‘dropped his confederates off near [a marijuana] 23 dispensary’ and ‘waited three blocks away for approximately 45 minutes.’ (Id. at pp. 795, 805 [189 Cal.Rptr.3d 208, 351 P.3d 330].) 24 After a security guard attempted to stop the robbers, all of whom were armed, one of them shot and killed him. (Id. at p. 795 [189 25 Cal.Rptr.3d 208, 351 P.3d 330].) The defendant then headed toward the dispensary, picked up the other two nonshooters, and drove them 26 away. (Id. at pp. 795–796, 805 [189 Cal.Rptr.3d 208, 351 P.3d 330].) Our state Supreme Court concluded that the defendant was ‘at the 27 Enmund pole of the Tison-Enmund spectrum,’ as there was no evidence that he planned the robbery or procured weapons, knew the 28 shooter had previously committed a violent crime, or was present at 1 the scene or even aware that a shooting had occurred. (Id. at p. 805 [189 Cal.Rptr.3d 208, 351 P.3d 330].) The court also concluded that 2 the defendant had not exhibited reckless indifference to human life, emphasizing that a defendant's knowing participation in an armed 3 robbery and subjective awareness of ‘the risk of death inherent in [that crime]’ does not suffice. (Id. at pp. 807–808 [189 Cal.Rptr.3d 4 208, 351 P.3d 330].) Rather, a defendant must appreciate that his or her ‘own actions would involve a grave risk of death.’ (Id. at p. 807 5 [189 Cal.Rptr.3d 208, 351 P.3d 330].) 6 “Clark expounded on the meaning of the ‘reckless indifference to human life’ element of a special circumstance under section 190.2[, 7 subdivision] (d), which ‘ “significantly overlap[s]” ’ with the ‘major participant’ element. ([People v.] Clark, supra, 63 Cal.4th at pp. 8 614–615 [203 Cal.Rptr.3d 407, 372 P.3d 811]; see [In re] Bennett [(2018)] 26 Cal.App.5th [1002,] 1015 [237 Cal.Rptr.3d 610].) Clark 9 explained that the mind state ‘encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the 10 defendant does not specifically desire that death as the outcome of his [or her] actions.’ (Clark, at pp. 616–617 [203 Cal.Rptr.3d 407, 11 372 P.3d 811].) The required intent has ‘both subjective and objective elements. The subjective element is the defendant's 12 conscious disregard of risks known to him or her. But recklessness is not determined merely by reference to a defendant's subjective 13 feeling that he or she is engaging in risky activities. Rather, recklessness is also determined by ... what “a law-abiding person 14 would observe in the actor's situation.” ’ (Id. at p. 617 [203 Cal.Rptr.3d 407, 372 P.3d 811].) As [People v.] Banks did as to the 15 ‘major participant’ element, Clark provided a nonexclusive list of factors bearing on the ‘reckless indifference to human life’ element. 16 (Clark, at p. 618 [203 Cal.Rptr.3d 407, 372 P.3d 811].) These factors are the ‘defendant's knowledge of weapons used in the crime, and 17 their actual use and number; [the] defendant's proximity to the crime and opportunity to stop the killing or aid [the victim or victims]; the 18 duration of the crime; [the] defendant's knowledge of [the actual killer's] propensity to kill; and [the] defendant's efforts to minimize 19 the possibility of violence during the crime.’ ([In re] Miller [(2017)] 14 Cal.App.5th [960,] 975 [222 Cal.Rptr.3d 691]; see Clark, at pp. 20 618–621 [203 Cal.Rptr.3d 407, 372 P.3d 811].) 21 “Applying these factors to the facts, Clark concluded there was insufficient evidence that the defendant had acted with reckless 22 indifference to human life. ([People v.] Clark, supra, 63 Cal.4th at p. 623 [203 Cal.Rptr.3d 407, 372 P.3d 811].) As summarized by a later 23 decision, the Clark defendant ‘ “was the mastermind who planned and organized [an] attempted robbery [of a computer store] and who 24 was orchestrating the events at the scene of the crime.” [Citation.] During the robbery, one of [the defendant's] accomplices ... shot and 25 killed the mother of a store employee who arrived at the store to pick up her son. At the time of the shooting, [the defendant] was not at the 26 store, but he drove to the location shortly thereafter and fled when he saw a woman lying on the ground, the police approaching, and [the 27 shooter] fleeing the scene.’ ([In re] Bennett, supra, 26 Cal.App.5th at pp. 1014–1015 [237 Cal.Rptr.3d 610], quoting Clark, at p. 612 28 [203 Cal.Rptr.3d 407, 372 P.3d 811].) Despite the evidence of the 1 defendant's significant involvement in planning the robbery, there was also evidence that he ‘planned the crime with an eye to 2 minimizing the possibilities for violence,’ because it was timed for after the store closed and there were not supposed to be bullets in the 3 gun. (Clark, at pp. 621–623 [203 Cal.Rptr.3d 407, 372 P.3d 811].) The court concluded that the special circumstance had to be vacated 4 since ‘nothing in the plan ... elevated the risk to human life beyond those risks inherent in any armed robbery.’ (Id. at p. 622 [203 5 Cal.Rptr.3d 407, 372 P.3d 811].)” (Taylor, supra, 34 Cal.App.5th at pp. 551–554, 246 Cal.Rptr.3d 342.) 6 In In re Scoggins (2020) 9 Cal.5th 667, 264 Cal.Rptr.3d 804, 467 7 P.3d 198 (Scoggins), the California Supreme Court again reiterated the Clark [fn. 7] factors. As recently summarized by Division Five, 8 in Scoggins, “the defendant believed he had been swindled by the victim and sought revenge by planning an unarmed beating, to be 9 committed by several of the defendant's friends—who would also get the defendant's money back. Once the plan was set in motion, 10 however, one of the defendant's friends pulled out a gun and shot the victim. The defendant had not been present because he feared the 11 victim would recognize him. Instead, the defendant waited at a nearby gas station, where his view of the crime scene was blocked. 12 He arrived at the scene after the shooting, checked to see if the victim was breathing, and cooperated with police.” (In re McDowell (2020) 13 55 Cal.App.5th 999, 1010, 269 Cal.Rptr.3d 872, citing Scoggins, at pp. 671–672, 678–679, 264 Cal.Rptr.3d 804, 467 P.3d 198.) In 14 assessing whether the defendant acted with reckless indifference, the Scoggins court reaffirmed the Clark factors and explained 15 determining culpability “requires a fact-intensive, individualized inquiry.” (Scoggins, at pp. 677, 683, 264 Cal.Rptr.3d 804, 467 P.3d 16 198.) The court concluded the defendant had not acted with reckless indifference, noting the defendant was not present during the 17 incident, his plan did not involve the use of weapons, the duration of the interaction was brief, the record was devoid of evidence 18 suggesting the defendant knew his friends were likely to use lethal force, and the defendant took steps to minimize the risk of injury by 19 planning a public unarmed assault. (Id. at pp. 671, 680–681, 683, 264 Cal.Rptr.3d 804, 467 P.3d 198.) 20 3. Analysis 21 Defendants argue insufficient evidence demonstrates they acted with 22 reckless indifference to human life during the attempted robbery. In assessing the Clark factors, certain considerations weigh for and 23 against a finding that defendants acted with reckless indifference to human life. 24 However, “ ‘ “[n]o one of these considerations is necessary, nor is 25 any one of them necessarily sufficient.” ’ ” (Scoggins, supra, 9 Cal.5th at p. 677.) 26 To begin, we note “[t]he intent to commit an armed robbery” or 27 “[t]he mere fact of a defendant’s awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to 28 human life.” (People v. Banks, supra, 61 Cal.4th at p. 799 (Banks); 1 Clark, supra, 63 Cal.4th at p. 618.) However, Clark acknowledged the presence of a gun is a factor to be considered, and “[a] 2 defendant’s use of a firearm, even if the defendant does not kill the victim . . . can be significant to the analysis of reckless indifference 3 to human life.” (Clark, at p. 618.) Here, defendants were not merely aware an accomplice was carrying a gun or that a gun would be 4 involved in the robbery. (See, e.g., id. at pp. 619-622 [the defendant did not use a gun and did not know any loaded guns would be used 5 in the robbery].) Rather, defendants themselves possessed and used firearms during the robbery. Both Glass and L.V. testified all of the 6 individuals involved in the robbery were wielding firearms. 7 Defendant Bradley argues the evidence does not indicate he actually expected to use his firearm. But that is not a component of the first 8 inquiry. Rather, the factor assesses “defendant’s knowledge of weapons used in the crime, and their actual use and number.” (In re 9 Miller, supra, 14 Cal.App.5th at p. 975.) Here, it is undisputed that defendants were aware they all had firearms and used them during 10 the attempted robbery. 11 Other factors supporting a finding of a reckless indifference to human life include defendants’ physical presence at the scene and the 12 opportunity to prevent the crime. (Clark, supra, 63 Cal.4th at p. 619.) According to Clark, “[i]n Tison, the high court stressed the 13 importance of presence to culpability.” (Ibid.) Presence at the location of the killing provides an opportunity to act as a restraining 14 influence. (Ibid.) Here, the surveillance video clearly places defendants at the scene, and they do not dispute that they were 15 present during the robbery. They thus were “aware of and willingly involved in the violent manner in which the particular offense [was] 16 committed. . . .” (See Banks, supra, 61 Cal.4th at pp. 801, 803, fn. 5.) In response, defendants argue the shooting was an unforeseeable 17 surprise and did not allow defendants to act as restraining influences on the shooter. But in so arguing, defendants focus on an extremely 18 narrow moment in time immediately prior to the shooting. While approaching the vehicle, defendants and Glass observed the public 19 nature of the vehicle-i.e., near the hotel swimming pool where various potential witnesses were present. But they continued with 20 their planned robbery. More importantly, Poblete failed to fully comply when defendants ordered him to raise his hands. Instead, 21 Poblete only raised one hand, indicating to defendants that he may have been hiding something in his other hand. And he was: a gun. 22 But despite his refusal to raise both hands, defendants continued with the planned robbery. And defendants either physically engaged with 23 Poblete by pulling him out of the vehicle or Poblete unilaterally decided to exit the vehicle-both of which suggest the robbery was not 24 progressing as anticipated. But defendants did not flee or alter their plans until after the shooting occurred. 25 Nor did defendants make any effort to assist the victim following the 26 shooting. (See Tison, supra, 481 U.S. at p. 141 [noting the Tison brothers’ failure to make an effort to help the victims].) While 27 defendants raise a host of reasons to justify their immediate flight, it is undisputed neither Mason nor Bradley attempted to render any 28 degree of aid following the shooting. Moreover, Mason committed 1 an assault on an individual who attempted to halt his flight, evidencing an ongoing lack of concern for the welfare of others. 2 The record also does not reflect any effort by defendants to minimize 3 the risk of the robbery. (See Clark, supra, 63 Cal.4th at p. 622 [“a defendant’s apparent efforts to minimize the risk of violence can be 4 relevant to the reckless indifference to human life analysis”].) Glass testified he and defendants never discussed whether they should 5 bring firearms, whether to keep those firearms unloaded, or how to minimize the likelihood of violence. Furthermore, as noted above, 6 Poblete’s truck was parked near a swimming pool where other individuals were present. The jury could reasonably have concluded 7 the public nature of the robbery and presence of others increased the risk of someone being injured. 8 Undoubtedly, there are some factors that do not evidence a reckless 9 indifference to human life. For example, “[t]he duration of the interaction between victims and perpetrators is ... one consideration 10 in assessing whether a defendant was recklessly indifferent to human life.” (Clark, supra, 63 Cal.4th at p. 620, 203 Cal.Rptr.3d 407, 372 11 P.3d 811.) The evidence reflects defendants were on the hotel property, and engaged with the victims, for a short period of time. 12 Thus, the duration of the robbery does not suggest defendants acted with reckless indifference. Similarly, nothing in the record indicates 13 defendants were aware of an accomplice's likelihood of killing. (Id. at p. 621, 203 Cal.Rptr.3d 407, 372 P.3d 811.) 14 We find this case analogous to People v. Bascomb, supra, 55 15 Cal.App.5th 1077, 270 Cal.Rptr.3d 58. There, Bascomb and his cohort forced their way into an apartment at gunpoint. (Id. at p. 1081, 16 270 Cal.Rptr.3d 58.) Bascomb held one individual at gunpoint for a few minutes while the cohort entered a bedroom, briefly struggled 17 with the occupant, and shot him. (Ibid.) They then fled following the shooting. (Ibid.) In assessing whether Bascomb acted with reckless 18 indifference, the court noted: “Bascomb was willingly involved in the violent manner in which the robbery took place.... Bascomb didn't 19 just watch without intervening as his accomplice accosted the murder victim in his bedroom, he used his weapon to keep the other victims 20 at bay and thereby actively enabled the murder. Nor did he help the victim once he had been shot, but instead fled. We agree with the 21 People that this sort of conduct easily meets our state's standard for what constitutes being a major participant who acted with reckless 22 indifference to human life.” (Id. at p. 1089, 270 Cal.Rptr.3d 58.) 23 The court also emphasized the importance of a defendant being an active participant who wielded a firearm: “As we said in People v. 24 Law, ‘we are not aware of a single case that concludes a defendant who personally committed a robbery, used a gun, and was present for 25 the shooting did not meet the standard’ of culpability required to support a felony murder conviction. (People v. Law (2020) 48 26 Cal.App.5th 811, 825, 262 Cal.Rptr.3d 268, review granted July 8, 2020, S262490.) The defendants who have shown their culpability 27 was too slight under Banks and Clark ‘are those who were not wielding guns themselves and also not present for the shooting 28 (either because they were acting as getaway drivers or because they 1 were involved in the planning of the crime only).’ ([Law, at p. 825, 262 Cal.Rptr.3d 268]; see also, e.g., In re Miller[, supra,] 14 2 Cal.App.5th [at p.] 965 [222 Cal.Rptr.3d 691] [defendant played the role of ‘spotter’ who would select the robbery target and was not at 3 the scene of the robbery/murder]; In re Bennett, supra, 26 Cal.App.5th at p. 1019 [237 Cal.Rptr.3d 610] [defendant was 4 involved in planning the robbery but was not at the scene of the murder]; [Taylor, supra,] 34 Cal.App.5th [at p.] 559 [246 5 Cal.Rptr.3d 342] [the defendant acted as getaway driver and was not at the scene of the murder].)” (People v. Bascomb, supra, 55 6 Cal.App.5th at p. 1090, 270 Cal.Rptr.3d 58; accord In re Ramirez (2019) 32 Cal.App.5th 384, 390, 243 Cal.Rptr.3d 753 (Ramirez) 7 [petitioner was waiting across the street with an accomplice's bicycle and was not at the scene of the murder].) 8 Defendants fail to identify a single case in which a defendant actively 9 participated in a robbery, wielded a firearm during that robbery, and was present for the shooting, but an appellate court found insufficient 10 evidence to support a finding that the defendant acted with reckless indifference for human life. Nor are we aware of any. In considering 11 the Clark factors, defendants’ culpability is greater than that set forth in those cases on which they rely, namely Banks, Clark, Scoggins, 12 Taylor, In re Bennett, and Ramirez. We conclude the evidence relevant to the Clark factors, when considered in total, sufficiently 13 supports the judgment. 14 [fn. 4] Defendants do not dispute they were major participants in the attempted robbery. 15 [fn. 5] Tison v. Arizona (1987) 481 U.S. 137, 107 S.Ct. 1676, 16 95 L.Ed.2d 127 (Tison); Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (Enmund). 17 [fn. 6] Senate Bill 1437, which amended the definition of 18 felony murder, incorporated the definitions of “a major participant” and “reckless indifference to human life” from 19 section 190.2, subdivision (d). (See § 189, subd. (e); People v. Bascomb (2020) 55 Cal.App.5th 1077, 1080, 270 20 Cal.Rptr.3d 58.) 21 [fn. 7] People v. Clark, supra, 63 Cal.4th 522, 203 Cal.Rptr.3d 407, 372 P.3d 811 (Clark). 22 23 Bradley, 65 Cal. App. 5th at 1028-36. 24 B. Legal Standards for Sufficiency of the Evidence Claim 25 The United States Supreme Court has held that when reviewing a sufficiency of the 26 evidence claim, a court must determine whether, viewing the evidence and the inferences to be 27 drawn from it in the light most favorable to the prosecution, any rational trier of fact could find 28 the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 1 319 (1979). “A reviewing court may set aside the jury's verdict on the ground of insufficient 2 evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 3 U.S. 1, 2 (2011) (per curiam). Moreover, “a federal court may not overturn a state court decision 4 rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with 5 the state court. The federal court instead may do so only if the state court decision was 6 ‘objectively unreasonable.’” Id. (citing Renico v. Lett, 559 U.S. 766 (2010)). The Supreme 7 Court cautioned that “[b]ecause rational people can sometimes disagree, the inevitable 8 consequence of this settled law is that judges will sometimes encounter convictions that they 9 believe to be mistaken, but that they must nonetheless uphold.” Id. 10 C. Discussion 11 Sufficiency of the evidence claims raised in § 2254 proceedings must be measured with 12 reference to substantive requirements as defined by state law. Jackson, 443 U.S. at 324 n.16. In 13 the present case, the state court set out the legal standards for felony murder in this case: the jury 14 had to conclude beyond a reasonable doubt that petitioner intended to commit robbery, was a 15 major participant in the crime, and acted with reckless indifference to human life. Bradley, 65 16 Cal. App. 5th at 1029. Only the reckless indifference determination is at issue here. 17 The reckless indifference standard has two elements – a subjective element and an 18 objective element. First, petitioner must have been “‘subjectively aware that his or her 19 participation in the felony involved a grave risk of death.’” People v. Banks, 61 Cal. 4th 788, 807 20 (2015) (citation omitted); see also In re Scoggins, 9 Cal. 5th 667, 677 (2020) (“As to the 21 subjective element, ‘[t]he defendant must be aware of and willingly involved in the violent 22 manner in which the particular offense is committed,’ and he or she must consciously disregard 23 ‘the significant risk of death his or her actions create.’” (quoting Banks, 61 Cal. 4th at 801)). 24 Second, as to the objective element, “‘[t]he risk [of death] must be of such a nature and degree 25 that, considering the nature and purpose of the actor's conduct and the circumstances known to 26 him [or her], its disregard involves a gross deviation from the standard of conduct that a law- 27 abiding person would observe in the actor's situation.’” Scoggins, 9 Cal. 5th at 677. 28 //// 1 In Scoggins, the California Supreme Court listed factors relevant to consideration of 2 reckless indifference: 3 Relevant factors include: Did the defendant use or know that a gun would be used during the felony? How many weapons were 4 ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the 5 victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant’s 6 knowledge of his or her confederate’s propensity for violence or likelihood of using lethal force? What efforts did the defendant make 7 to minimize the risks of violence during the felony? [N]o one of these considerations is necessary, nor is any one of them necessarily 8 sufficient. 9 Scoggins, 9 Cal. 5th at 677 (internal quotation marks and citations omitted). In the present case, 10 there was evidence supporting several factors: (1) petitioner helped plan the robbery by 11 instructing the others how to approach the car; (2) petitioner knew that he, Mason, and Glass had 12 guns; (3) petitioner was physically present at the scene of the planned robbery; (4) petitioner 13 actively participated in it by pointing a gun at the victim; (5) petitioner saw that the victim had a 14 gun; and (6) petitioner was present when the victim was shot. 15 Petitioner’s primary argument is that the evidence did not show he and his codefendants 16 anticipated that the victim would draw a gun. Therefore, he continues, he had no reason to expect 17 the robbery to result in violence. He also argues that the shooting was not part of a preconceived 18 plan. Petitioner’s definition of reckless indifference is too limited. He fails to show that no 19 reasonable juror could have found he acted with reckless indifference under the state law 20 standards. 21 Petitioner relies on three cases – Scoggins, Clark, and Banks. Those cases involved 22 defendants with significantly less participation in the crime than the evidence showed petitioner 23 had here. In each case, the defendant was involved in planning the robbery but was not at the 24 scene of the crime and was not armed. Scoggins, 9 Cal. 5th at 677-78 (The defendant understood 25 the robbery would be unarmed, he did not have a gun, and he was not present at the scene.); 26 Clark, 63 Cal. 4th at 618-23 (The defendant was not armed and was not present at the scene 27 where the shooting occurred.); Banks, 61 Cal. 4th at 807-08 (The defendant was an unarmed 28 getaway driver.). The California Supreme Court’s statements that participation in an armed 1 robbery does not, without more, satisfy the deliberate indifference standard were made in the 2 context of cases in which the defendants were neither armed nor present. Scoggins, 9 Cal. 5th at 3 677; Clark, 63 Cal. 4th at 618; Banks, 61 Cal. 4th at 799. It would not be unreasonable to find 4 that being present at the crime and wielding a gun were significant in the “reckless indifference” 5 calculation. The California Supreme Court in Clark so noted. Clark, 63 Cal.4th at 618 (“A 6 defendant's use of a firearm, even if the defendant does not kill the victim ..., can be significant to 7 the analysis of reckless indifference to human life.”). 8 Petitioner argues that his presence at the scene is primarily relevant as to whether he had 9 an opportunity to intervene before the victim was shot. Petitioner argues he did not – the victim 10 pulled a gun and was immediately shot. However, considering the evidence in the light most 11 favorable to the prosecution, as this court is required to do, it is possible to find petitioner did 12 have that opportunity. Glass testified that either petitioner or Mason told the victim to raise his 13 hands. He did not do so, and Glass saw the victim reach for a gun. The victim was then either 14 pulled from the car or began to step out of it. In either scenario, the situation changed from the 15 defendants having control over the victims by pointing guns at them to something more 16 complicated and could reasonably be considered more likely to result in violence. Petitioner and 17 Mason could have fled as soon as the victim failed to raise his hands or began to exit the car. The 18 evidence could be reasonably interpreted to show that petitioner did not do so. Rather, he fled 19 only after the victim was shot. 20 This court also recognizes that the California Supreme Court in Banks focused on the 21 absence of evidence that the defendant knew his co-defendants had a propensity for violence or 22 knew they might encounter armed resistance that could result in the use of violence. 61 Cal. 4th 23 at 811. That is true in the present case as well. Respondent points to no evidence that petitioner 24 subjectively knew about a history of or propensity for violence or that the victim might be armed. 25 Further, under Scoggins, it is not enough that violence “might” have been a result of the crime. 9 26 Cal. 5th at 677. Rather, the prosecution must prove petitioner “knowingly create[ed] a grave risk 27 of death.” Id. (internal quotations marks and citations omitted). That said, this court is not tasked 28 with reevaluating or reweighing the evidence. Rather, the federal considers only whether the 1 Court of Appeal’s holding is so unreasonable that no rational appellate court could have upheld 2 the jury’s verdict. 3 This court cannot say that the Court of Appeal’s reliance on some, but not all, of the 4 Scoggins factors - petitioner’s planning, presence, and use of a weapon - was so unreasonable that 5 no rational appellate court could find petitioner knowingly created a grave risk of death. 6 Petitioner’s sufficiency of the evidence claim should be denied. 7 II. Instructional Error 8 In his second claim, petitioner argues that his due process rights were violated by the trial 9 court’s refusal to permit an instruction on attempted robbery as a lesser included offense of felony 10 murder. 11 A. Decision of the State Court 12 1. Relevant Background 13 Prior to trial, defendant Bradley filed a motion in limine requesting the jury be instructed on robbery and attempted robbery as lesser 14 included offenses of felony murder. Bradley argued the jury may plausibly find that he committed robbery but not find him liable for 15 Poblete's death. The prosecutor objected to the instruction. 16 The court ultimately declined to give the lesser included instruction. The court explained, historically, attempted robbery was not a lesser 17 included offense to murder, and it was unaware of any authority altering that analysis. While it questioned the fairness of the 18 situation, the court ultimately concluded the district attorney is “the charging body” and “consciously chose to withdraw those charges,” 19 and it would “honor [the prosecutor's] objection.” 20 2. Analysis 21 Senate Bill 1437 modified the prior rule that “ ‘a defendant who intended to commit a specified felony could be convicted of murder 22 for a killing during the felony, or attempted felony, without further examination of his or her mental state.’ ” (People v. Cooper, supra, 23 54 Cal.App.5th at p. 113, 268 Cal.Rptr.3d 417, rev. granted.) The statutory scheme was amended such that “ ‘ “[m]alice shall not be 24 imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).)’ ” (Ibid.) Rather, the defendant must 25 have been “the actual killer,” “have an intent to kill,” or “ ‘was a major participant in the underlying felony and acted with reckless 26 indifference to human life, as described in subdivision (d) of Section 190.2.’ (§ 189, subd. (e)(3).)” (Ibid.) 27 Based on these statutory changes, defendants argue their guilt in an 28 attempted robbery and resulting killing does not automatically make 1 them guilty of felony murder. Rather, the prosecution must also establish, in this instance, the defendants were “major participant[s] 2 in the underlying felony and acted with reckless indifference to human life.” (§ 189, subd. (e)(3).) Because the attempted robbery and 3 death alone cannot support a felony-murder conviction, defendants argue attempted robbery must be a lesser included offense. 4 Two tests are used to determine “whether a crime is a lesser included 5 offense of a greater offense: the elements test and the accusatory pleading test. [Citation.] Either of these tests triggers the trial court's 6 duty to instruct on lesser included offenses.” (People v. Gonzalez (2018) 5 Cal.5th 186, 197, 233 Cal.Rptr.3d 791, 418 P.3d 841.) 7 “Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, 8 or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be 9 committed without also committing the lesser.” ( People v. Birks (1998) 19 Cal.4th 108, 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) We 10 address each test in turn.[fn 11] 11 We are unaware of any authority suggesting the elements test would trigger a duty to instruct on robbery based on a felony-murder charge. 12 First degree felony murder, as set forth in section 189, identifies various predicate offenses including “arson, rape, carjacking, 13 robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 287, 288, or 289, or former 14 Section 288a, or murder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person 15 outside of the vehicle with the intent to inflict death ....” (§ 189, subd. (a).) Because robbery is only one of multiple predicate offenses, it 16 does not satisfy the requirement “that the greater”—i.e., felony murder—“cannot be committed without also committing the 17 lesser”—i.e., robbery. (See People v. Birks, supra, 19 Cal.4th at p. 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) Felony murder could be 18 committed, for example, based on arson or kidnapping. 19 Nor does the accusatory pleading test, in this instance, trigger the duty to instruct. The amended information alleges defendants “did 20 commit a felony namely: MURDER, a violation of Section 187[, subdivision] (a) of the Penal Code ... in that said defendants did 21 unlawfully, and with malice aforethought murder ROBBY POBLETE, a human being.” Nowhere in the information is robbery 22 mentioned. While robbery undoubtedly constituted the predicate offense for the felony-murder charge, the California Supreme Court 23 has repeatedly held that courts should not look beyond the actual pleading and its allegations regarding the purported greater offense 24 when applying the accusatory pleading test to determine whether one offense is necessarily included in another. (See, e.g., People v. Banks 25 (2014) 59 Cal.4th 1113, 1160, 176 Cal.Rptr.3d 185, 331 P.3d 1206 [“When applying the accusatory pleading test, ‘[t]he trial court need 26 only examine the accusatory pleading.’ ”], overruled in part by People v. Scott (2015) 61 Cal.4th 363, 391, 188 Cal.Rptr.3d 328, 349 27 P.3d 1028; People v. Smith (2013) 57 Cal.4th 232, 244, 159 Cal.Rptr.3d 57, 303 P.3d 368; People v. Montoya (2004) 33 Cal.4th 28 1031, 1036, 16 Cal.Rptr.3d 902, 94 P.3d 1098 [“Consistent with the 1 primary function of the accusatory pleading test—to determine whether a defendant is entitled to instruction on a lesser uncharged 2 offense—we consider only the pleading for the greater offense.”].) 3 Defendants contend following the accusatory pleading test, without more, would allow the district attorney to artfully plead around what 4 would otherwise constitute lesser included offenses for felony murder. We agree that is a possibility. However, the California 5 Supreme Court recognized the right of prosecutors to craft pleadings to avoid lesser included offenses, albeit in another context. In People 6 v. Smith, supra, 57 Cal.4th 232, 159 Cal.Rptr.3d 57, 303 P.3d 368 (Smith), the court addressed in part whether resisting a public officer 7 under section 148, subdivision (a)(1) was a lesser included offense to resisting an executive officer in the performance of his duties 8 under section 69. (Smith, at p. 236, 159 Cal.Rptr.3d 57, 303 P.3d 368.) The court first concluded the section 148 violation was not a 9 lesser included offense under the statutory elements test because section 69 could be violated in two ways, only one of which 10 overlapped with section 148. (Smith, at p. 241, 159 Cal.Rptr.3d 57, 303 P.3d 368.) 11 In addressing the accusatory pleading test, the Supreme Court 12 explained: “If the accusatory pleading in the present case had charged only the first way of violating section 69 ... [,] section 148[, 13 subdivision] (a)(1) would not have been a necessarily included offense. But the amended information charged defendant with both 14 ways of violating section 69.” (Smith, supra, 57 Cal.4th at p. 242, 159 Cal.Rptr.3d 57, 303 P.3d 368.) In concluding section 148 was a 15 lesser included offense based on the information as drafted, the court acknowledged the ability of prosecutors to draft pleadings in a 16 manner that would exclude certain lesser offenses: “The prosecution may, of course, choose to file an accusatory pleading that does not 17 allege the commission of a greater offense in a way that necessarily subsumes a lesser offense.” (Smith, at p. 244, 159 Cal.Rptr.3d 57, 18 303 P.3d 368.) 19 Similarly, in People v. Munoz (2019) 31 Cal.App.5th 143, 242 Cal.Rptr.3d 314 (Munoz), the defendant argued gross vehicular 20 manslaughter while intoxicated should be considered a lesser included offense of murder under the accusatory pleading test. (Id. at 21 p. 155, 242 Cal.Rptr.3d 314.) Although the pleading merely repeated the statutory definition of murder and did not set forth the additional 22 requirement for gross vehicular manslaughter while intoxicated, the defendant asserted driving under the influence of alcohol was 23 indisputably the basis for the murder charge. (Ibid.) The court agreed driving while intoxicated was a necessary component of the murder 24 charge, but rejected the defendant's argument: “We do not disagree that, based on the preliminary hearing and jury instructions, the 25 prosecution could not secure a murder conviction under the circumstances of this case without proving beyond a reasonable 26 doubt that Munoz drove while intoxicated. The Supreme Court has indicated repeatedly, however, that when applying the accusatory 27 pleading test to determine whether one offense is necessarily included in another, courts do not look to evidence beyond the actual 28 pleading and its allegations regarding the purported greater offense.” 1 (Id. at pp. 155–156, 242 Cal.Rptr.3d 314.) 2 Munoz further emphasized the need to restrict the accusatory pleading test to only those allegations in the relevant pleading: “The 3 Supreme Court has explained the importance of limiting analysis of lesser included offenses to the statutory elements and language of the 4 accusatory pleading to ‘promote[ ] consistency in application’ and ‘ease[ ] the burden on both the trial courts and the reviewing courts.’ 5 ” (Munoz, supra, 31 Cal.App.5th at p. 156, 242 Cal.Rptr.3d 314.) Munoz rejected application of an “expanded” accusatory pleading 6 test as contrary to Supreme Court precedent. (Id. at p. 158, 242 Cal.Rptr.3d 314.) 7 Here, there are multiple predicate offenses that can form the basis for 8 felony murder, and “[a]n information or indictment need not specify the theory of murder on which the prosecution will rely.” (People v. 9 Gurule (2002) 28 Cal.4th 557, 629, 123 Cal.Rptr.2d 345, 51 P.3d 224; accord Smith, supra, 57 Cal.4th at p. 244, 159 Cal.Rptr.3d 57, 10 303 P.3d 368 [district attorney may “file an accusatory pleading that does not allege the commission of a greater offense in a way that 11 necessarily subsumes a lesser offense”].) Accordingly, robbery is not a lesser included offense under the accusatory pleading test when the 12 information does not set forth the predicate offense for the felony- murder allegation. The trial court did not err in declining to give the 13 requested instruction on robbery as a lesser included offense.[fn 12] 14 [fn 11] Defendant Mason argues the court has a duty to instruct on relevant principles of law if supported by the 15 evidence. But this position misstates the law. “A trial court has a sua sponte duty to ‘instruct on a lesser offense 16 necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the 17 lesser.’ ” (People v. Shockley (2013) 58 Cal.4th 400, 403, 165 Cal.Rptr.3d 497, 314 P.3d 798.) But we need not address the 18 evidence if the lesser offense is not “necessarily included” in the charged offense. And, to make that assessment, we look 19 to the elements test and the accusatory pleading test. (See People v. Gonzalez, supra, 5 Cal.5th at p. 197, 233 20 Cal.Rptr.3d 791, 418 P.3d 841.) 21 [fn 12] Because we conclude the trial court did not err in declining to instruct on robbery as a lesser included offense, 22 we need not address defendants’ arguments that the error was prejudicial. 23 24 Bradley, 65 Cal. App. 5th at 1036-40. 25 B. Legal Standards for Instructional Error Claim 26 A challenge to jury instructions solely as an error under state law does not state a claim 27 cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72 28 (1991). The failure of a state trial court to instruct on lesser included offenses in a noncapital case 1 does not present a federal constitutional claim. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2 2000). However, “the defendant’s right to adequate jury instructions on his or her theory of the 3 case might, in some cases, constitute an exception to the general rule.” Solis, 219 F.3d at 929 4 (citing Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984) ); see also Cox v. Muniz, No. 17- 5 CV-05723-JD, 2018 WL 4207231, at *3 (N.D. Cal. Sept. 4, 2018). Solis suggests that there must 6 be substantial evidence to warrant the instruction on the lesser included offense. Solis, 219 F.3d 7 929-30 (no duty to instruct on voluntary manslaughter as lesser included offense to murder 8 because evidence presented at trial precluded a heat of passion or imperfect self-defense 9 instruction; no duty to instruct on involuntary manslaughter because evidence presented at trial 10 implied malice). 11 Due process does not require that an instruction be given unless the evidence supports it. 12 See Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005). The defendant is not entitled to 13 have jury instructions raised in his or her precise terms where the given instructions adequately 14 embody the defense theory. United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996). To 15 obtain relief for the state court’s refusal to give an instruction, the error must so infect the trial 16 that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. See 17 Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). In a federal habeas proceeding, the 18 court must further consider whether the state appellate court was unreasonable in its interpretation 19 or application of that standard. 28 U.S.C. § 2254(d). 20 C. Discussion of Instructional Error Claim 21 Petitioner argues only the predicate to the due process claim. He contends that robbery 22 and attempted robbery are lesser included offenses of felony murder in this case. That is not a 23 question cognizable on federal review. The Supreme Court has made clear that defining what is 24 or is not a lesser included offense is a question of state law. See Anderson v. Calderon, 232 F.3d 25 1053, 1082 (9th Cir. 2000) (citing Hopkins v. Reeves, 524 U.S. 88, 90-91 (1998)), overruled on 26 other grounds by Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003). The state courts are the 27 arbiters of state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A] state court’s 28 interpretation of state law, including one announced on direct appeal of the challenged conviction, 1 binds a federal court sitting in habeas corpus.”). Accordingly, this court must accept the state 2 court’s determination in this case that attempted robbery is not a lesser included offense of felony 3 murder under California law. 4 The Supreme Court has further made clear that the Constitution does not require state trial 5 courts to instruct juries on offenses that are not lesser included offenses of the charged crime 6 under state law. Hopkins, 524 U.S. at 90-91; see also Gonzalez v. Runnels, 395 F. App’x 481, 7 481-82 (9th Cir. 2010) (state court’s denial of habeas petitioner’s claim “that his due process 8 rights were violated when the trial court declined to instruct the jury on the lesser related offense 9 of grossly negligent discharge of a firearm” was “foreclosed by Hopkins” and “not an 10 unreasonable application of clearly established federal law” because “the state was not required to 11 provide instructions on lesser related offenses”). 12 The Court of Appeal decided the state law question that attempted robbery was not a 13 lesser included offense of felony murder. It did not, and under federal law need not have, ruled 14 on the question of whether the evidence supported a robbery instruction. The Court of Appeal’s 15 denial of petitioner’s instructional error claim was not contrary to or an unreasonable application 16 of clearly established federal law. Petitioner’s instructional error claim should be denied. 17 CONCLUSION 18 For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner’s petition 19 for a writ of habeas corpus be denied. 20 These findings and recommendations will be submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after 22 being served with these findings and recommendations, any party may file written objections with 23 the court and serve a copy on all parties. The document should be captioned “Objections to 24 Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be 25 filed and served within seven days after service of the objections. The parties are advised that 26 failure to file objections within the specified time may result in waiver of the right to appeal the 27 district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In the objections, the 28 party may address whether a certificate of appealability should issue in the event an appeal of the 1 | judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the district court must 2 | issue or deny a certificate of appealability when it enters a final order adverse to the applicant). 3 | Dated: April 4, 2023 4 5 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 | DLB:9 DB Prisoner Inbox/Habeas/S/brad0197.fr 20 21 22 23 24 25 26 27 28 25