NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 09 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
CHARLES FRANK SPENCE, No. 09-16784
Petitioner - Appellant, D.C. No. 2:03-cv-01987-GEB-
JFM
v.
ALEXANDER HICKMAN, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted November 29, 2010
San Francisco, California
Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.
Charles Frank Spence, a California state prisoner, appeals the district court’s
denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury
conviction of murder and robbery with a special circumstances finding. Because
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the facts are known to the parties, we repeat them only as necessary to explain our
decision. We affirm.
Spence argues that he was denied due process and the right against self-
incrimination because he “was induced into making an incriminating statement by
the false and misleading assertion of an arresting detective that he did not need an
attorney to assist during the investigation.” The California Court of Appeal
concluded that there was no uncontroverted evidence showing that such a
statement was made in Spence’s presence, and Spence is unable to show that this
conclusion “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Even
if the state court’s determination were incorrect, there is still no ground for
affording Spence habeas relief because no clearly established Supreme Court
precedent deems testimony involuntary where, before issuing a Miranda warning
and obtaining a waiver, a police officer opines in a suspect’s presence that the
suspect does not need an attorney. See id. § 2254(d)(1) (permitting grant of federal
habeas petition where adjudication on the merits “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court”).
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Spence next argues that there was insufficient evidence to support his
murder conviction and special circumstances finding under Jackson v. Virginia,
443 U.S. 307 (1979). The state did not have to adduce evidence demonstrating that
the murder actually assisted the robbery’s commission, but only proof that the
killing was committed by him or his accomplice acting in furtherance of their
common design. See People v. Washington, 62 Cal. 2d 777, 783 (1965). Based on
the evidence presented, a reasonable juror could have so found beyond a
reasonable doubt. See Jackson, 443 U.S. at 324 (“[An] applicant is entitled to
habeas corpus relief if it is found that upon the record evidence adduced at the trial
no rational trier of fact could have found proof of guilt beyond a reasonable
doubt.”). Also, a reasonable juror could have determined, as required for the
special circumstances finding, that Spence acted as a major participant with
reckless disregard for human life, by procuring and giving a loaded gun to his
accomplice for the purposes of committing a robbery.
Spence finally contends that his counsel rendered ineffective assistance by
not investigating and presenting evidence that Spence’s conduct before the
shooting was at most mere preparation, which Spence claims was his strongest
defense. Strickland v. Washington, 466 U.S. 668 (1984), requires that a habeas
petitioner demonstrate both that his trial counsel’s performance “fell below an
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objective standard of reasonableness” and that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 688, 694. Spence did not show that the California
court was objectively unreasonable in determining that he was not prejudiced by
counsel’s purported errors. See Bell v. Cone, 535 U.S. 685, 698–99 (2002)
(requiring that federal habeas petitioner show that state court “applied Strickland to
the facts of his case in an objectively unreasonable manner”). As the district court
observed, because the jury found that Spence had robbed the victim, Spence cannot
show that a defense of mere preparation would have changed the outcome of his
case. We decline to grant relief on Spence’s ineffective assistance of counsel
claim.
AFFIRMED.
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