John Lam v. Kathleen Dickinson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 13 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOHN LAM, No. 12-16128
Petitioner - Appellant, D.C. No. 2:10-cv-00829-EFB
v.
MEMORANDUM*
KATHLEEN DICKINSON,
Respondent - Appellee.
JIMMY CHI COOC, No. 12-16503
Petitioner - Appellant, D.C. No. 2:10-cv-00882-GEB-
EFB
v.
ANTHONY HEDGPETH, Warden,
Respondent-Appellee.
JOHN VAI DICH, No. 12-16815
Petitioner - Appellant, D .C. No. 2:10-cv-00172-GEB-
EFB
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
FRANCISCO JACQUEZ, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Edmund F. Brennan, Magistrate Judge, Presiding
Argued and Submitted September 9, 2014
San Francisco, California
Before: WALLACE, SCHROEDER, and OWENS, Circuit Judges.
California state prisoners John Lam, Jimmy Cooc and John Dich appeal
from the district court’s denial of their petitions for habeas corpus challenging
California first-degree murder convictions. They contend they were denied due
process when the state trial court, in properly instructing the jury on the elements
of first-degree murder and lesser included offenses, mistakenly gave the jury an
additional partial instruction on felony murder.
The felony murder instruction should not have been given. The instruction
appeared to permit a conviction for murder without a finding of malice and was in
violation of the California Supreme Court’s decision in People v. Ireland, 450 P.2d
580, 589–90 (Cal. 1969). Federal law requires the State to prove every element of
the offense with which the defendants were charged. See Middleton v. McNeil, 541
U.S. 433, 437 (2004).
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The California Court of Appeal, however, reviewed all of the instructions
the jury received. The court concluded that there was no reasonable likelihood that
the jury, in reliance on the felony murder instruction, would have failed to make
the requisite finding as to malice. We may not grant habeas relief unless the state
court’s decision is an unreasonable application of the facts to the law or contrary to
clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d). The
California state court’s conclusion was neither.
The errant felony murder instruction was not a complete instruction and
lacked any explanation of the elements that the jury would have been required to
find. The relevant jury instructions on murder, in contrast, explained the requisite
findings for each degree of murder, including at least eight references to the malice
requirement. Felony murder was neither charged nor argued to the jury. The
district court appropriately described the felony murder instruction as “nothing but
an orphaned charge that found no support in the other instructions with which the
jury had to grapple.”
We need not separately address the government’s contention that petitioner
Cooc’s claim is procedurally defaulted. We also need not address the uncertified
issues raised by petitioner Dich, which do not raise viable federal claims.
AFFIRMED.
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