                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 26 2019
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ANNAMARIA MAGNO GANA,                           No.   17-55714

                Petitioner-Appellant,           D.C. No.
                                                5:16-cv-01146-AB
  v.

MOLLY HILL, Acting Warden,                      MEMORANDUM*

                Respondent-Appellee.



                   Appeal from the United States District Court
                      for the Central District of California
                    Andre Birotte Jr., District Judge, Presiding

                     Argued and Submitted February 8, 2019
                              Pasadena, California

Before: GOULD and NGUYEN, Circuit Judges, and MARBLEY,** District
Judge.

       AnnaMaria Magno Gana appeals an order from the Central District of

California denying her 28 U.S.C. § 2254 petition for a writ of habeas corpus. On a

petition for a writ of habeas corpus under 28 U.S.C. § 2254, “[w]e review de novo


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
the district court’s application of AEDPA to [the last reasoned state court decision].”

Rademaker v. Paramo, 835 F.3d 1018, 1023 (9th Cir. 2016). To prevail under

AEDPA, Gana must show constitutional error and show that the error was actually

prejudicial. Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993). A federal

constitutional error is not harmless unless “it was harmless beyond a reasonable

doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). And “[w]hen a Chapman

decision is reviewed under AEDPA, ‘a federal court may not award habeas relief

under § 2254 unless the harmlessness determination itself was unreasonable.’”

Davis v. Ayala, 135 S.Ct. 2187, 2199 (2015). A harmlessness determination “is not

unreasonable if ‘fairminded jurists could disagree on [its] correctness.’” Id. (quoting

Harrington v. Richter, 562 U.S. 86, 101 (2011)).

      AEDPA applies because the California Court of Appeal decided that any

error at trial was harmless under Chapman. Gana argues that the California Court

of Appeal did not apply the Chapman standard and did not decide whether the

error was a federal constitutional error. But Gana has not overcome the

presumption that a claim is adjudicated on the merits. The California Court of

Appeal did not discuss whether it was applying a state or federal rule and cited the

state court decisions of People v. Wright, 146 P.3d 531 (2006) and People v.

Maury, 68 P.3d 1 (2003). Maury makes no mention of the Chapman standard, but

Wright concluded that the same type of error at issue here was harmless under both


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the state harmlessness standard and Chapman. Gana points to the dissenting

opinion that relied on a state-law harmless error standard. The dissent, however,

specifically noted that because the error was not harmless, “there is no need to

determine whether the [error] . . . is governed by a more stringent reversible error

standard.” Therefore, the California Court of Appeal’s decision that the error was

harmless under Wright and Maury constituted a determination that the error was

harmless under Chapman and meets the requirements for a merits determination

subject to AEDPA deference.

       Gana cannot “show that the state court’s decision to reject [her] claim ‘was so

lacking in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Davis, 135 S.Ct.

at 2199 (quoting Harrington, 562 U.S. at 103). A jury could confuse the lay and

legal definitions of unconscious, as even the prosecutor did, and the involuntary

intoxication instruction may have clarified that voluntarily taking prescription

medications did not necessarily mean that Gana was voluntarily intoxicated.

Additionally, the prosecutor told the jury in closing argument that “the possible side

effects of medication . . . . [are] not a defense.”.

       But the trial court “told the jury it could consider the evidence of mental

disease, defect, or disorder in determining whether defendant ‘actually formed the

required specific intent or mental state[s],’” and Gana presented evidence of her


                                            3
altered mental state. The “hallucination” instruction told the jury that it could

consider whether Gana suffered from a hallucination or delusion in deciding whether

to find premeditation and deliberation and/or lying in wait.            The voluntary

intoxication instruction told the jury that it “should consider [voluntary intoxication]

in deciding whether the defendant had the required specific intent and/or mental

state.” CALJIC 4.21. And the prosecutor’s argument in context suggests that he

may have simply been attempting to contest that Gana’s medication affected her

intent. The jury nevertheless convicted Gana of the special circumstance of lying in

wait and premeditation and deliberation.

      Gana’s burden-shifting argument is unconvincing. Her argument rests on the

language in the given instructions that “If the evidence establishes that the

perpetrator of an unlawful killing suffered from a hallucination and/or delusion,”

CALJIC 8.73.1 (emphasis added), and “If the evidence shows that the defendant was

intoxicated at the time of the alleged crime,” CALJIC 4.21. (emphasis added). But

the requested instructions provide only that “evidence of involuntary intoxication

should be considered” in determining whether the mental state requirement was met.

CALJIC 4.23. The unconsciousness instruction directs that the defendant cannot be

convicted if the jury has “a reasonable doubt that the defendant was unconscious at

the time and place of the commission of the alleged crime.” CALJIC 4.30. Thus,

the requested instructions did not necessarily require the jury to find that Gana was


                                           4
in fact intoxicated or was in fact unconscious. We do not read jury instructions in

such a technical manner. See Boyde v. California, 494 U.S. 370, 380–81 (1990).

Gana cites cases in which the jury instructions included an express presumption

against the defendant. See, e.g., Sandstrom v. Montana, 442 U.S. 510 (1970);

Francis v. Franklin, 471 U.S. 307 (1985). That is not the case here. The state had

to prove that Gana had the required mental state beyond a reasonable doubt.

      As the district court noted, there was “strong evidence in support of the jury’s

rejection of [Gana’s] mental state defense.” Gana told responding officers that she

shot her husband. She entertained friends at their home that morning, made several

entries in her planner in the days before the shooting, and sent notes to employees

on May 6 and 7, 2011, about business matters. While Gana argues that these factual

considerations are for the jury, it is one thing to review the evidence in the first

instance and quite another to conclude that there was enough evidence to support a

jury’s verdict. Reviewing courts routinely conduct the latter analysis on habeas

review. See, e.g., Dixon v. Williams, 750 F.3d 1027 (9th Cir. 2014); United States

v. Montalvo, 331 F.3d 1052 (9th Cir. 2003). The California Court of Appeal’s

harmlessness determination was not objectively unreasonable.

AFFIRMED.




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