FINDINGS AND RECOMMENDATIONS

GREGORY G. HOLLOWS, Magistrate Judge.

INTRODUCTION

Petitioner is a state prisoner proceeding with counsel on an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on July 14, 2009 in the Yolo County Superior Court on charges of first degree murder (Cal. Penal Code §187(a)). He seeks federal habeas relief on the following grounds: (1) petitioner's conviction of first-degree murder is not supported by sufficient evidence to show that he acted with premeditation and deliberation; and (2) the trial court erred by instructing petitioner's jury that the degree of the crime committed by petitioner as an aider and abettor was a function of the degree of the crime committed by Madrigal (the perpetrator), and that Madrigal was guilty of premeditated murder.12 (ECF No. 37.) Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be granted on the second claim, jury instruction error.

BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

People v. Rodriguez, No. C062857, 2011 WL 684608, at *1-3 (Cal. Ct. App. Feb. 28, 2011).3

Petitioner was convicted of first degree murder and received a prison term of 25 years to life. (CT. 336.) Petitioner appealed the conviction which was denied by the California Court of Appeal on February 28, 2011. (Res't's Lod. Doc. 4.) Subsequently, petitioner filed a petition for review with the California Supreme Court, which was denied on June 8, 2011. (Resp't's Lod. Docs. 5, 6.)

On August 22, 2012, petitioner filed his pro se federal petition for writ of habeas corpus. (ECF No. 1.) Respondent moved to dismiss based on an unexhausted claim. The motion was vacated without prejudice, and petitioner was appointed counsel, after which petitioner filed his first amended petition alleging the claims set forth above. (ECF No. 37.)

In conjunction with his first amended petition, petitioner filed a motion for stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269, (2005), in order to permit exhaustion of Claim Three for ineffective assistance of counsel.4 (ECF No. 38.) The undersigned recommended that petitioner's motion be granted, and this recommendation was adopted by the district court. (ECF Nos. 44, 45.) The California Supreme Court denied the claims raised in the exhaustion petition without comment. (ECF No. 46.) On December 11, 2014, petitioner notified the court that the California Supreme Court had ruled upon the exhaustion petition and that all claims were now exhausted. (ECF No. 46.) Accordingly, the stay was lifted on December 18, 2014. (ECF No. 47.) Respondent filed a motion to dismiss on the grounds that the newly exhausted claims were time-barred and did not relate back, on April 29, 2015, (ECF No. 56), which was denied for the most part by findings and recommendations issued October 6, 2015, and adopted on December 8, 2015. (ECF Nos. 69, 72.) Only the first sub-claim of Claim 2, regarding judicial notice, was dismissed. Id. An answer to the amended petition was filed on May 9, 2016, followed by a reply on July 13, 2016.

DISCUSSION

I. AEDPA STANDARDS AND JUDICIAL REVIEW

The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

For purposes of applying § 2254(d)(1), clearly established federal law consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir.2013) (citing Greene v. Fisher, ____ U.S. ____, ____, 132 S.Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir.2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495 (2000)). Circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, ____ U.S. ____, ____, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, ____ U.S. ____, ____, 132 S.Ct. 2148, 2155 (2012)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id.

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640, 123 S.Ct. 1848 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.5 Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir.2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a `firm conviction' that the state court was `erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140 (2004)).6 Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 103.

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.2007) (en banc). "[Section] 2254(d) does not require a state court to give reasons before its decision can be deemed to have been `adjudicated on the merits.'" Harrington, 562 U.S. at 100. Rather, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ____ U.S. ____, ___, 133 S.Ct. 1088, 1091 (2013).

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir.2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir.2003).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365 (2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 562 U.S. at 98.

A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir.2012). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Harrington, 562 U.S. at 98. This court "must determine what arguments or theories . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 786. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).

The petitioner bears "the burden to demonstrate that `there was no reasonable basis for the state court to deny relief.'" Walker v. Martel, 709 F.3d 925, 939 (9th Cir.2013) (quoting Harrington, 562 U.S. at 98).

II. SUFFICIENY OF EVIDENCE FOR PETITIONER'S CONVICTION FOR PREMEDITATED MURDER

1. Insufficient Evidence Standard

"A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.2005). Sufficient evidence supports a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979). "After AEDPA, we apply the standards of Jackson with an additional layer of deference." Juan H., 408 F.3d at 1274. Moreover, petitioner's challenge to the sufficiency of evidence based on credibility of the witnesses is not cognizable in an insufficient evidence claim.

2. Aiding and Abetting Standards

California law on aiding and abetting was set forth by the Court of Appeals in its opinion on direct appeal.

(Res't's Lod. Doc. 1 at 8.)

As further elaboration, the undersigned adds:

People v. McCoy, 25 Cal.4th 1111, 1116-1117 (2001). In the underlying case, petitioner was prosecuted under the first theory; he was not prosecuted under the natural and probable consequences doctrine. (Mot. to Dismiss, Res't's Lod. Doc. 1 at 16.)

2. State Law on Murder

In this case, petitioner was convicted of (aiding and abetting) first degree murder in violation of California Penal Code § 187, which states: "(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." Malice is then defined as follows:

Cal. Penal Code § 188. Implied malice exists "when a defendant is aware that he is engaging in conduct that endangers the life of another." People v. Cravens, 53 Cal.4th 500, 507 (2012).

Second degree murder contains the same elements as first degree murder, but without the additional elements of premeditation and deliberation, which first degree murder requires. People v. Sandoval, 62 Cal.4th 394, 424 (2015).

2. Analysis

Petitioner asserts that insufficient evidence existed for his conviction for first degree, premeditated and deliberated murder (aiding and abetting). The conclusion that sufficient evidence existed to demonstrate that petitioner aided and abetted a premeditated and deliberate murder was AEDPA reasonable. Petitioner's claim here is based upon the mistaken premise that because petitioner had no knowledge that Madrigal was going to murder Cerna, prior to the time the stabbing commenced, a fact undisputed even by the Court of Appeal's own opinion, he could not have aided a premeditated murder.

Petitioner is mistaken because it is not the commencement of felonious acts which may lead to a victim's death which constitutes the time at which a murder was committed; there is simply no murder until the victim dies whatever the nature of the preceding acts. Thus, the manner of killing itself may demonstrate the required premeditation, especially in cases where the ultimate killing may take a relatively long time and is occasioned by repeated acts.

People v. Hovarter, 44 Cal.4th 983, 1019-1020 (2008) (discussing whether sufficient evidence existed with respect to premeditated murder)7

Accordingly, if in this prolonged time period of repeated acts, a person, not the perpetrator, acquires knowledge that a murder is likely to happen, that person may also be aware that the perpetrator/killer is premeditating that murder by the very nature of the perpetrator's acts, and the length of time it is taking to kill the victim. If that person then aids (or continues to aid) the ultimate killing, that person (aider and abettor) may legally have done so with knowledge that a premeditated murder was taking place, i.e., the acts constituting premeditation/deliberation were unfolding before the aider's eyes. In this case, over a relatively long period of time, the victim Cerna was stabbed multiple times, screaming and resisting. Yet, petitioner continued to aid the perpetrator/killer by his continued facilitation of the stabbing, i.e., he kept on driving the car thereby facilitating the continued stabbing. Moreover, other acts, even those occurring after the death of the victim, and performed by petitioner, such as disposing of the body, could reflect on his intent/awareness at the time the killing was taking place.

The Court of Appeal found:

People v. Rodriguez, 2011 WL 684608 at *4-5.

Thus, petitioner's witnessing the killing as it unfolded for 10 gruesome minutes, i.e., the very acts of Madrigal demonstrating premeditation throughout the ordeal, combined with petitioner's support of those acts by his driving and post-killing support, demonstrates sufficient evidence for petitioner's state of mind in aiding and abetting a premeditated murder.

However, while the evidence was sufficient, even the Court of Appeal believed it to be a "close[] question." Indeed, the prosecution produced the only direct evidence of petitioner's intent—a statement which in many ways demonstrated the opposite of what the prosecution was attempting to prove. Petitioner was entitled to have a fair shot at demonstrating to the jury that his mind set was not that of full knowledge and facilitation of the perpetrators premeditation/deliberation in the murder of Cerna. Fn. 7 supra. As set forth in the next section, petitioner did not have that fair shot—his jury was given a mandatory presumption instruction— i.e., Madrigal's premeditation was an undisputed fact in petitioner's trial, hence, petitioner was "equally guilty."

III. JURY INSTRUCTIONS

1. Background

Petitioner asserts there were several layers of instructional error that denied petitioner his right to a jury trial on the mens rea element of first degree murder.

Petitioner notes the following instructions were erroneous:

(ECF Nos. 37-1 at 116-17, 61 at 19-20.) (internal citations omitted).

In findings and recommendations filed October 6, 2015, the undersigned declined to permit relation back of the first sub-claim regarding judicial notice, and that sub-claim was dismissed. See ECF Nos. 69, 70. Nevertheless, the findings, which were adopted in full by the district court, specifically stated:

(ECF No. 69 at 12.)

Claim 2 in the petition itself, and all of the sub-claims, here revolve about Sub-Claim 2 and can be synthesized into one claim concerning the instruction that an aider and abettor was "equally guilty" of the acts of which the perpetrator was convicted. The other instructions noted as "erroneous," are only erroneous, if at all, insofar as they modify or exacerbate this initial instruction.

In regard to Claim 2 as it existed prior to the addition and exhaustion of various sub-claims, the Court of Appeal addressed the jury instructions regarding petitioner's mental state, rejecting his argument, as set forth in the following portion of the opinion:

People v. Rodriguez, No. C062857, 2011 WL 684608, at *6-8 (Cal. Ct. App. Feb. 28, 2011).

2. Pertinent Legal Authority

a. Law Pertaining to Jury Instruction Challenges

A challenge to a jury instruction solely as an error of state law does not state a claim cognizable in a federal habeas corpus action. See Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475 (1991) (habeas corpus is unavailable for alleged error in the interpretation or application of state law); see also Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). The standard of review for a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle, 502 U.S. at 62. In order for error in the state trial proceedings to reach the level of a due process violation, the error had to be one involving "fundamental fairness." Id. at 73. The Supreme Court has defined the category of infractions that violate fundamental fairness very narrowly. Id.

In order to establish a due process violation, petitioner must show both ambiguity in the instructions and a "reasonable likelihood" that the jury applied the instruction in a way that violates the Constitution, such as relieving the state of its burden of proving every element beyond a reasonable doubt. Waddington v. Sarausad, 555 U.S. 179, 190, 129 S.Ct. 823, 831 (2009). The court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. See United States v. Frady, 456 U.S. 152, 169, 102 S.Ct. 1584 (1982).

Importantly, however, a finding that the jury was likely to have applied the ailing instruction in a way that violates the Constitution does not end the analysis. The court must then find that the jury misapprehension prejudiced the outcome of petitioner's trial, i.e., had a substantial and injurious effect on the outcome of the trial. Calderon v. Coleman, 525 U.S. 141, 146-147 (1998) referencing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see discussion of prejudice below.

Also, with respect to due process, a jury instruction laden with a mandatory presumption and pertinent to the elements of the crime, is one that violates due process. Sandstrom v. Montana, 442 U.S. 510 (1979) (instruction that a person intends the ordinary consequences of voluntary acts may have been interpreted as conclusive or as shifting the burden of persuasion).

Finally, with respect to jury instruction ambiguity, if a jury demonstrates confusion over an ambiguous instruction, the trial court has a duty to rectify the confusion, and not just repeat the ambiguous instructions (or exacerbate the problem). Bollenback v. United States, 326 U.S. 607, 612-613 (1941) ("When a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy.") See also McDowell v. Calderon, 130 F.3d 833 (9th Cir. 1997) (en banc) impliedly overruled on other grounds, see Morris v. Woodford, 273 F.3d 826, 839 (fn.4) (9th Cir. 2001).

Jury instruction error is not presumed prejudicial. Even if it is determined that the instruction violated the petitioner's right to due process, a petitioner can only obtain relief if the unconstitutional instruction had a substantial influence on the conviction and thereby resulted in actual prejudice under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), which is whether the error had substantial and injurious effect or influence in determining the jury's verdict.8 See Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008) (per curiam).

Because the Brecht standard "obviously subsumes" the more liberal AEDPA/Chapman standard, the Ninth Circuit has held "we need not conduct an analysis under AEDPA of whether the state court's harmlessness determination on direct review . . . was contrary to or an unreasonable application of clearly established federal law." Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir.2010) (citing Fry, 551 U.S. at 120). See also Ortiz v. Yates, 704 F.3d 1026, 1038 and n. 9 (9th Cir.2012). Instead, a federal habeas court is to apply the Brecht test without regard for the state court's harmlessness determination. Pulido, 629 F.3d at 1012 (citing Fry, 551 U.S. at 121-22); see also Merolillo v. Yates, 663 F.3d 444, 454-55 (9th Cir.2011) (Applying "`the Brecht test without regard for the state court's harmlessness determination.'")

The Supreme Court has since clarified that Brecht incorporates the requirements of § 2254(d) (AEDPA). Davis v. Ayala, 135 S.Ct. 2187, 2199 (2015). Accordingly, if a state court has determined that a trial error was harmless, "a federal court may not award habeas relief under § 2254(d) unless the harmlessness determination itself was unreasonable." Id. (quoting Fry v. Pliler, 551 U.S. 112, 119 (2007)) (emphasis in original). "[R]elief is proper only if the federal court has "grave doubt about whether a trial error of federal law had `substantial and injurious effect or influence in determining the jury's verdict.'" Davis, 135 S. Ct. at 2197-98, (2015) (quoting O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992 (1995)). The Brecht test will be applied, but with due consideration of the state court's reasons for concluding the error was harmless beyond a reasonable doubt. Jones v. Harrington, 829 F.3d 1128, 1141-42 (9th Cir. 2016).

3. Analysis

Petitioner argues that the trial court committed several instructional errors, which, in combination, required the jury to find that petitioner was guilty of first degree murder as an aider and abettor because his co-defendant and direct perpetrator, Madrigal, was guilty of premeditated murder. In other words, the instructions directed the jury to find that petitioner's mens rea was a function of the mens rea of Madrigal. At the very least, petitioner contends that the instructions were unconstitutionally ambiguous.

One of the analytical problems here is that the Court of Appeal did not precisely follow the paradigm set out by the Supreme Court for ambiguous instructions. Rather, it found that state law error occurred in giving the "equally guilty" instruction, but that such was harmless beyond a reasonable doubt because other instructions cured the ambiguity. The undersigned will nevertheless interpret the opinion as one finding that it was not likely that the jury was mislead by the ambiguous instruction. The other analytical problem is that the "equally guilty" instruction was not ambiguous in itself, it was simply wrong, but rather only became ambiguous when juxtaposed with the other instructions. In either event, however, the appellate opinion is AEDPA unreasonable.

The court provided the following instructions for first and second degree murder. The court informed the jury that defendant was being "prosecuted for first-degree murder under the theory that he aided and abetted a willful, deliberate, and premeditated murder." (RT. 641.) The court went through the elements for first degree murder, and then stated that "[a]ll other murders are of the second degree." The court instructed the jury that the People had the burden to prove first degree murder beyond a reasonable doubt rather than a lesser crime, and if the prosecution had not met its burden, then the jury must find the defendant not guilty of first degree murder. The court further stated, "[f]or you to find a person guilty of the crime of murder as charged in Count 1, either first- or second-degree murder, that person must not only intentionally commit the prohibited act, but must do so with a specific intent and mental state." (Id. at 642.) The court instructed pursuant to CALCRIM No. 640 that the jury would be given verdict forms for first and second degree murder, and it could find defendant guilty of first degree murder or second degree murder, or neither. (CT. 268-69.)

Petitioner argues that former CALCRIM No. 400,9 which instructed the jury that if it found that petitioner was an aider and abettor of Madrigal, then his guilt was "equal" to Madrigal's guilt, effectively directed the jury to return a verdict of first degree murder against petitioner, making it impossible to return a verdict of second degree murder. The Court of Appeal found that although the giving of this instruction by itself was error, when viewed in conjunction with the other instructions as a whole, the other instructions, in particular CALCRIM 401, served to cure the error. CALCRIM No. 401, as given to the jury, stated:

(CT. 261.)10

CALCRIM 401 did not cure the error. It did not correct the errors of the other instructions which eliminated the need to find petitioner himself had the requisite intent level for first degree murder, premeditation and deliberation, separate from the perpetrator's intent. Furthermore, this instruction only referred to "the crime," and did not specify or distinguish between first and second degree murder, or even mention the word murder. This allegedly curative instruction left the intent level to be instructed by CALCRIM No. 521, which was limited to defining petitioner's mens rea based on the perpetrator's mens rea. See discussion infra.

Pursuant to People v. Nero, 181 Cal.App.4th 504 (2010), the case cited by petitioner, the language of CALCRIM No. 400 is misleading in using the term "equally guilty" because all of the well-established legal authority set forth therein concludes that an aider and abettor can be more or less guilty than the perpetrator, such that the mens rea of the accomplice must "float free" and be proved independently. Id. at 515-518. In Nero, the jury asked very similar mid-deliberation questions to those posed in this case, such as whether an aider and abettor could be guilty of a lesser offense than the perpetrator. The trial court, instead of answering in the affirmative, re-read CALJIC No. 3.00 [precursor to CALCRIM No. 400]. The appellate court concluded it was federal constitutional error, and not harmless, stating:

Id. at 518-19. The Nero court concluded that it could not say, beyond a reasonable doubt, that the defendant would have been found guilty of second-degree murder absent the error.

CALCRIM No. 520 was given here in regard to "murder with malice aforethought," but did not explain the degrees of murder. It stated:

(CT. 265.)

The court then explained the definition of malice aforethought, both express and implied, as well as the meaning of natural and probable consequence and substantial factor. The court concluded this instruction by stating, "[i]f you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree." (Id.) The court failed to explain, however, the differences between first and second degree murder, or that what had just been instructed pertained only to second degree murder and did not include the crucial elements of first degree murder.

The giving of modified version of CALCRIM 521 would normally serve to help cure the error in giving CALCRIM 400. Nevertheless, this instruction was modified11 and informed the jury that petitioner's guilt was a function of whether it agreed that Madrigal committed first degree murder. (CT. 266.) The Court of Appeals summarized CALCRIM No. 521 as follows:

(Res't's Lod. Doc. 1 at 17.) CALCRIM No. 521 as given referred to the intent of the perpetrator, not the defendant, instructing in part:

(CT. 266.) (emphasis added).

CALCRIM No. 521 incorrectly perpetuated the notion that solely the intent of the perpetrator was to be used in deciding petitioner's guilt, not petitioner's own intent. It further repeatedly discussed the perpetrator, not petitioner, in furthering the erroneous notion that petitioner's mens rea was to be based solely on that of the perpetrator. As petitioner points out, under California law, "a defendant charged with murder . . . cannot be held vicariously liable for the mens rea of an accomplice. People v. Concha, 47 Cal.4th 653, 665 (2009) (citing McCoy, supra, 25 Cal.4th at p. 1118).12 The Court of Appeal failed to recognize the error in CALCRIM No. 521 and its effect on the other instructional errors. It is no wonder that the jury later asked two questions concerning its confusion over Madrigal's first degree murder conviction and its impact on petitioner's potential verdict.

Petitioner also objected to the court's use of an instruction upon request from the prosecution, that judicial notice be given to the following information "which is not subject to dispute," that "on January 9th, 2009, defendant Jose David Madrigal was indeed convicted of a violation of Penal Code Section 187, which is described as first-degree, willful, deliberate, and premeditated murder." (RT. 599.) This argument is no longer a sub-claim but may be pertinent to highlight the issue here. When combined with the "equally guilty" instruction, the jury had to be mislead. It was told that Madrigal was indisputably guilty of premeditated murder and that petitioner was "equally guilty." The jury was then faced with how to apply this one-way direction with generalized instructions informing the jury that it could find petitioner guilty of only second degree murder. One could hardly invent a scenario which would be as likely to mislead the jury.

There was no explanation of how that conviction came to be, such as the argument that Madrigal pled guilty in order to avoid the death penalty or life without the possibility of parole, as well as the prosecutor's argument in reliance on it. Since Madrigal was not a witness at petitioner's trial, petitioner had no opportunity to cross-examine him on these or other matters, such as his intent level, motive, planning, or his involvement in the crime as compared to petitioner's involvement. More importantly, the court's taking judicial notice of Madrigal's conviction with the court's added description of that conviction as "first-degree, willful, premeditated, and deliberate murder," served to establish a mens rea that was the standard to which petitioner's mens rea would have to equate, according to the instructions given. The prosecutor seized on that instruction, attempting to cement in the jury's minds the concept that the court had resolutely taken judicial notice of the notion of Madrigal's conviction for killing the victim with an intent that was willful, deliberate and premeditated. (RT. 645-46.) The judicial notice instruction increased the prejudice from the other instructions which are the subject of petitioner's claims, all of which eliminated the prosecution's burden to independently prove petitioner's intent level so long as he was found to have aided and abetted Madrigal in the crime.

Petitioner correctly contends that the jury's two mid-deliberation questions evidencing its confusion support his claim. First, the jury asked, "why were we given a second choice of 2nd degree murder, since D.M. [co-defendant David Madrigal] was convicted of 1st degree murder[?]" (CT. 285.) The court's response was the following instructions:

(CT. 274.)

(CT. 275.)

(CT. 276.) These instructions did nothing to clarify the issue to the jury that petitioner had to be convicted under his own mens rea, but erroneously, solely focused on the killing by the perpetrator and his mens rea, thus perpetuating the faulty language of CALCRIM Nos. 400 and 521.

Having been unable to obtain elucidation, the jury asked a second mid-deliberation question, written as follows:

(CT. 305-06.) In response, the court re-instructed the jury with the four elements of aiding and abetting as previously given in CALCRIM No. 401, as well as the following:

(CT. 278.) (emphasis added)

Again, the jury was instructed that it only need look to the murder itself to determine whether petitioner was guilty of first degree murder. It again assumes that if the murder was of the first degree, an aider and abettor was guilty of that first degree murder. No instruction as given that the aider and abettor had to know of the full extent of the perpetrator's (Madrigal's) premeditation in order to be guilty of the first degree murder.

These two mid-deliberation questions indicate the ambiguity in the jury instructions on aiding and abetting because the jury's questions reflect its confusion as to whether it could convict the defendant of the lesser crime of second degree murder in light of Madrigal's conviction of first degree murder. See Waddington v. Sarausad, 555 U.S. 179, 192 n. 5, 129 S.Ct. 823 (2009) ("the defendant must show both that the instruction was ambiguous and that there was a `reasonable likelihood' that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt") (citations omitted). Although the jury was specifically instructed that the prosecution had to prove its case beyond a reasonable doubt; see CT. 241; the jury was also essentially told the prosecution had met its burden because the perpetrator was guilty of first degree, premeditated murder. The jury was sufficiently confused to ask two separate mid-deliberation questions asking whether it was bound to find first degree murder based on Madrigal's conviction, thereby relieving the prosecution of its burden to independently prove petitioner's intent. Even after the first mid-deliberation question was asked and answered, the jury continued to want direction on the very same issue, indicating that the court had not clarified the issue for the jury the first time around.

Not only did the jury pose the aforementioned mid-deliberation questions, but their other questions reflected their confusion as to petitioner's culpability as an aider and abettor in light of the instructions and argument about Madrigal's culpability. First, shortly after the jury was excused to deliberate, it requested twelve copies of CALCRIM 400 and 401, despite having previously received one copy of the entire set of jury instructions. (RT. 691, 695.) The jury also asked: "at what point is it considered the end of the crime. Ds charged i.e. time of death; disposal of body, etc." (CT. 285.) This question was asked at the same time as the jury asked its first mid-deliberation question that is at issue in this habeas, why it was given a choice of second degree murder, if Madrigal was convicted of first degree murder.

Furthermore, the prosecutor perpetuated the errors in focusing on the "equally guilty" language and Madrigal's willful intent in her closing argument. She told the jury,

(RT. 679-80.) (emphasis added).

The prosecutor basically told the jury in no uncertain terms that petitioner, as a facilitator, was as guilty as the perpetrator, and that was the law. Therefore, petitioner had to be found guilty of first degree murder since it was undisputed that Madrigal was convicted of first degree murder. The prosecutor repeatedly focused on Madrigal's intent instead of petitioner's intent throughout her closing argument. For example, she argued:

(RT. 644-46.)

The prosecutor repeatedly referenced Madrigal's actions and state of mind, as well as the judicial notice taken by the court of his first degree murder conviction.

When it came to argument about petitioner's role and aiding and abetting, the prosecutor focused on petitioner's knowledge of Madrigal's intent to kill during the time Madrigal was stabbing her, that he was aware of the stabbing while he was driving for about ten minutes, and that he saw Madrigal stab her about ten to fifteen times, fast and hard, while she was still alive. (RT. 649, 355-56.) The prosecutor did not otherwise address the intent level required for petitioner, at least as far as petitioner's alleged intent to aid and abet a premeditated murder. The prosecutor then concluded her closing argument with the statement,

(RT. 660.) (emphasis added). The prosecutor perpetuated the erroneous language of CALCRIM No. 400 by repeating it at the end of her closing argument. As also pointed out by petitioner, the prosecutor added in her rebuttal the statements which continued to eliminate the proper intent level required for petitioner to be convicted of first degree murder:

(RT. 676.)

Of course, that might well be true if the only question was whether petitioner aided and abetted a murder, but the critical question here is whether petitioner understood he was aiding and abetting a premediated murder. One cannot reasonably find that the prosecutor's argument cleared up any ambiguity regarding the required mens rea for aiding and abetting a premeditated murder; rather the argument simply added to the bog of ambiguity.

In sum, there can be little doubt that the jury applied the ailing "equally guilty" instruction in a way that violated the Constitution, especially since other instructions exacerbated the error. No valid attempt was made by the trial judge to cure the ambiguities that seems so obvious now. The prosecutor, at times, reinforced the error in final argument. One can almost see the jurors throwing up their hands when the court failed to recognize a very legitimate confusion. There can be little doubt that the jury was, in effect, given a mandatory presumption that if it found the perpetrator guilty of first degree murder, and petitioner guilty of aiding and abetting the murder, any other choice for petitioner aside from aiding and abetting first degree murder was foreclosed for all intents and purposes because as a matter of law, petitioner was "equally guilty."

As related earlier, the Court of Appeal recognized the error in giving the "equally guilty" instruction, but found that error harmless beyond a reasonable doubt. This latter finding equates with a finding that it was not likely that the jury was misled (even though the jury twice related that it was confused by the patent ambiguity at best, and a direction to find petitioner equally guilty with Madrigal at worst.) With all the due respect that AEDPA requires of federal courts when reviewing state criminal convictions, the finding by the Court of Appeal in the circumstances of this case is AEDPA unreasonable. This brings the question to the harmlessness of the error from a Brecht standpoint.

There was plenty of evidence, supplied by the prosecution, which pointed to only a joinder, at best, by petitioner with Madrigal in an intent to kill, i.e. second degree murder, as petitioner continued to drive the van during the mayhem. Petitioner reported that Madrigal beforehand only told him that he wanted to have sex with the victim, not that his intention was to kill her as a payback for a favor he owed. Petitioner stated that if he had known the truth, he never would have taken him in the van because he didn't "like to be involved in such things." (RT. 376, 387.) Officer Jimenez thanked petitioner for his cooperation and told him he thought petitioner was telling truth and that he believed him. (RT. 540, 554, 556.) Petitioner reported to police that he kept driving because he "got really nervous since [he had] never seen things like that." (RT. 393.) He reported that he never did anything to the victim. He stated, "[e]ven if I wanted to do something, that guy [Madrigal] would have done something to me as well. I don't know him. I just know him from that night. Had I tried to do something, he would have fucked me up, too." (RT. 394.) Petitioner also related that he had not met Madrigal before the night of the murder. (RT. 344-45.) While this evidence is not dispositive of petitioner's state of mind, it certainly impacts a jury's consideration of whether petitioner was aiding a murder as opposed to a premeditated and deliberate murder. While there was sufficient evidence (under the low bar set by the law for finding such) that petitioner had sufficient time to clear the blur of events transpiring in the car such that he could be found to be joining in a relatively on-the-spot premeditated/deliberate murder, petitioner was entitled to a fair determination of whether that indeed was occurring in his mind.

The issue facing the jury here, trying to determine from the evidence presented not only whether an aider and abettor (petitioner) understood that the perpetrator (Madrigal) had evidenced an intent to kill while in the car, but also understood in the avalanche of events that the perpetrator was evincing a premeditated and deliberate intent to kill, was, to put it mildly, an esoteric task—one that would challenge most lawyers not to mention lay jurors. This task, and hence ultimately the verdict given the evidence of record, was substantially and injuriously harmed by the hopeless ambiguity created when the jury was initially directed to find petitioner "equally guilty" with the perpetrator.

CONCLUSION

For the reasons stated herein, IT IS HEREBY RECOMMENDED that:

1. Petitioner's application for a writ of habeas corpus be granted in part on the instructional error claim, and be denied on the insufficient evidence claim; and

2. Petitioner's conviction for first degree murder be vacated; and petitioner be given the option of pleading to second degree murder and be sentenced thereon, or be retried with all charges at issue.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).