                            NOT FOR PUBLICATION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


                                           3
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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