FILED
NOT FOR PUBLICATION OCT 09 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARCO ANTONIO LOPEZ, No. 09-17121
Petitioner - Appellant, D.C. No. 3:08-cv-01452-MHP
v.
MEMORANDUM *
MICHAEL STAINER, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted September 10, 2012
San Francisco, California
Before: ALARCÓN, THOMAS, and BERZON, Circuit Judges.
California state prisoner Marco Lopez appeals from the district court’s
denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr.
Lopez argues that the state trial court violated his federal due process rights to a
fair trial by failing to instruct the jury properly. Specifically, he asserts that to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
establish felony-murder under California law, the prosecution must prove that the
killing and the underlying felony were part of one “continuous transaction.”
Because the parties are familiar with the history of this case, we need not recount it
here. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 2253. We
affirm the district court.
I
We review the district court’s denial of a 28 U.S.C. § 2254 petition for
habeas corpus de novo and its findings for clear error. Hurles v. Ryan, 650 F.3d
1301, 1308-09 (9th Cir. 2011). In reviewing California state court decisions, this
Court must apply the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) to any petition filed after April 24, 1996. 28 U.S.C. § 2254; see also
Woodford v. Garceau, 538 U.S. 202, 204 (2003); Lindh v. Murphy, 521 U.S. 320,
326 (1997). Here, Lopez filed his habeas petition on March 14, 2008, so it is
subject to AEDPA. Under AEDPA, a federal court may grant relief if the state-
court decision:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted
in a decision that 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
Lopez raised a federal constitutional claim in his appeal before the
California Court of Appeal. In its twelve-page decision denying his appeal, the
court did not address his federal-law claim. The California Supreme Court
summarily denied Lopez’s petition for review, which raised the same federal
constitutional issues. The issue was therefore adequately exhausted. We need not
decide whether to apply de novo review because the state courts did not squarely
address the federal issue, or the AEDPA’s more deferential review, as we would
affirm the district court’s decision under either standard.
II
Mr. Lopez’s sole argument on appeal is that the trial court violated his rights
to due process under the Fourteenth Amendment by improperly instructing the jury
on the elements of felony-murder as defined by California law. Mr. Lopez
contends the trial court erred by failing to adopt a proposed instruction regarding
the “one continuous transaction” rule because one “continuous transaction is an
essential element of felony murder in California.” (App. Br. at 13.) Neither the
California Supreme Court nor the California Court of Appeal has so held.
Under California Penal Code section 189, murder that is “committed in
perpetration of” certain enumerated felonies, including robbery and burglary, is
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murder in the first degree. The California Supreme Court has invoked the “‘one
continuous transaction’ analysis” as a standard for the sufficiency of evidence to
support a felony-murder instruction or conviction. People v. Sakarias, 22 Cal. 4th
596, 624 (2000). Rather than establishing “one continuous transaction” as an
element of felony-murder, however, California courts adopted the analysis for
guidance on appellate review regarding the contours of “in perpetration
of”—specifically, whether substantial evidence exists to demonstrate a sufficient
connection between a killing and an underlying felony. See id; People v. Cavitt, 33
Cal. 4th 187, 207-08 (2004) (stating that the continuous-transaction doctrine was
“not intended to relieve the wrongdoer from any probable consequence of his act
by placing a limitation upon the res gestae which is unreasonable or unnatural[,]”
but rather to “define[] the duration of felony-murder liability, which may extend
beyond the termination of the felony itself”) (emphasis omitted). Thus, that a
felony and homicide are “one continuous transaction” is a sufficient condition to
satisfy the statutory requirement of “in perpetration of,” but not a necessary one.
The trial court properly relied on the language in California Penal Code
section 189 in instructing the jury that the elements of felony murder are “1. A
human being was killed. 2. The killing was unlawful. 3. The killing . . . occurred
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during the commission or attempted commission of robbery or burglary.” (RT at
3960.) The trial court further instructed the jury:
If you find that the defendant stabbed Gordon Lee Fowler with two
simultaneous and separate [intents], one to defend himself from
imminent danger of the atrocious crime of rape, and the other to
commit a theft, the defendant is not entitled to an acquittal on the
grounds of either self defense or defense against the atrocious crime
of rape.
If you find that the defendant stabbed Fowler with the intent to defend
himself from imminent rape [and] with the [intent] to [commit] a
theft, you may find the defendant guilty of first degree murder under
the felony murder rule, if all the elements of either robbery or
burglary have been proved.
...
If you find the defendant stabbed Gordon Lee Fowler not during the
course of a robbery [and] without the intent to commit a theft, and did
so only in response to unwanted touching or threat not amounting to
imminent danger of rape the crime of second degree murder is
reduced to voluntary manslaughter.
...
If you find the defendant stabbed Gordon Lee Fowler without the
intent to commit robbery or theft, and that he stabbed only in response
to imminent rape, having an actual belief that the rape was imminent,
if you find such a belief reasonable under the circumstances, the
defendant is entitled to an acquittal on the charge of murder.
(RT at 3070, 3079 (emphases added).) These CALJIC instructions properly
instructed the jury regarding the relationship between the underlying felony and the
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homicide and also informed the jury of its responsibility to find all the elements of
felony-murder.
AFFIRMED.
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