                                                        FILED
                      NOT FOR PUBLICATION
                                                        OCT 26 2016
               UNITED STATES COURT OF APPEALS        MOLLY C. DWYER, CLERK
                                                      U.S. COURT OF APPEALS


                      FOR THE NINTH CIRCUIT


PETER ELVIK,                        No.   13-17530

         Petitioner-Appellee,       D.C. No.
                                    3:04-cv-00471-GMN-WGC
v.

RENEE BAKER, Warden and
ATTORNEY GENERAL OF THE STATE
OF NEVADA,                          ORDER

         Respondents-Appellants.



PETER ELVIK,                        No.   14-15126

         Petitioner-Appellant,      D.C. No.
                                    3:04-cv-00471-GMN-WGC
v.

RENEE BAKER, Warden and
ATTORNEY GENERAL OF THE STATE
OF NEVADA,

         Respondents-Appellees.
Before: SCHROEDER and N.R. SMITH, Circuit Judges, and KRONSTADT,*
District Judge.
       The prior memorandum disposition and dissent filed on June 28, 2016, are

hereby amended concurrent with the filing of the amended disposition today. With

these amendments, Judge N.R. Smith has voted to deny the petition for rehearing

en banc, and Judges Schroeder and Kronstadt have so recommended.

         The full court was advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

         The petition for rehearing en banc is DENIED. No further petitions for

rehearing or rehearing en banc may be filed in response to the amended

disposition.




         *
             The Honorable John A. Kronstadt, United States District Judge for the
Central District of California, sitting by designation.
                                            2
                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 26 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PETER ELVIK,                                     No. 13-17530

              Petitioner - Appellee,             D.C. No. 3:04-cv-00471-GMN-
                                                 WGC
  v.

RENEE BAKER and ATTORNEY                         AMENDED MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,

              Respondents - Appellants.



PETER ELVIK,                                     No. 14-15126

              Petitioner - Appellant,            D.C. No. 3:04-cv-00471-GMN-
                                                 WGC
  v.

RENEE BAKER and ATTORNEY
GENERAL OF THE STATE OF
NEVADA,

              Respondents - Appellees.


                On Remand From the United States Supreme Court


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER and N.R. SMITH, Circuit Judges, and KRONSTADT,**
District Judge.

      The Nevada Attorney General appeals the district court’s order conditionally

granting Peter Elvik’s 28 U.S.C. § 2254 habeas corpus petition, arguing that (1) the

district court was obligated to develop alternative theories to support the Nevada

Supreme Court’s decision, and (2) the district court erred by concluding that the

trial court’s failure to provide a jury instruction was not a harmless error. We

affirm.

      1. The district court was not obligated to develop alternative theories to

support the Nevada Supreme Court’s decision. The Nevada Supreme Court did not

provide a summary decision without reasoning, as in Harrington v. Richter, 562

U.S. 86, 96 (2011), or a decision that failed to address one of petitioner’s claims, as

in Johnson v. Williams, 133 S. Ct. 1088, 1096–97 (2013). Instead, the Nevada

Supreme Court provided a reasoned decision that addressed all of the key issues in

Elvik’s petition. Therefore, the district court did not err by analyzing the rationale

of the Nevada Supreme Court as presented in its reasoned opinion.

      2. In Davis v. Ayala, the Supreme Court clarified that the Nevada Supreme

Court’s harmless error determination must be analyzed under the framework set

          **
             The Honorable John A. Kronstadt, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.

                                          -2-
out in 28 U.S.C. § 2254(d). 135 S. Ct. 2187, 2198 (2015). Here, the Nevada

Supreme Court provided a reasoned decision on whether the error was harmless.

But the court analyzed the error under a more deferential state law standard rather

than Chapman v. California, 386 U.S. 18, 24 (1967), which is the required

standard for determining whether federal constitutional errors are harmless. This

was “contrary to . . . clearly established federal law,” and when a state court applies

the incorrect legal standard, we afford it no deference. See Shirley v. Yates, 807

F.3d 1090, 1101 (9th Cir. 2015). Instead, we proceed to analyze whether the error

was harmless de novo.

      3. The trial court’s failure to provide the jury with an instruction regarding

Nevada Revised Statute section 194.010 was not a harmless error. On collateral

review, an error is not harmless if it “had [a] substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,

637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Under

this standard, petitioners are not entitled to habeas relief “unless they can establish

that [the trial court’s error] resulted in ‘actual prejudice.’” Id. The Supreme Court

has explained:

      [I]f one cannot say, with fair assurance, after pondering all that happened
      without stripping the erroneous action from the whole, that the judgment
      was not substantially swayed by the error, it is impossible to conclude


                                           -3-
      that substantial rights were not affected. The inquiry cannot be merely
      whether there was enough [evidence] to support the result, apart from .
      . . the error. It is rather . . . whether the error itself had substantial
      influence. If so, or if one is left in grave doubt, the conviction cannot
      stand.

Kotteakos, 328 U.S. at 765. Additionally, “[w]here the record is so evenly

balanced that a judge ‘feels himself in virtual equipoise as to the harmlessness of

the error’ and has ‘“grave doubt” about whether an error affected a jury

[substantially and injuriously], the judge must treat the error as if it did so.’”

Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (second alteration in original)

(quoting O’Neal v. McAninch, 513 U.S. 432, 435, 437–38 (1995)).

      Nevada Revised Statute section 194.010 creates a presumption that children

(between the ages of eight years and fourteen years) lack the capacity to

distinguish right from wrong. See Winnerford Frank H. v. State, 915 P.2d 291,

293 (Nev. 1996). Accordingly, the prosecution bears the burden of rebutting this

presumption by establishing, through clear proof, “that at the time of committing

the act . . . [the child] knew its wrongfulness.” Nev. Rev. Stat. § 194.010. Elvik’s

proposed instruction (based on section 194.010) stated:

      All persons are liable to punishment except those belonging to the
      following class as it applies to this case:

      Children between the ages of eight years and fourteen years, in the
      absence of clear proof that at the time of committing the act charged


                                           -4-
      against them they knew its wrongfulness. Peter Elvik was fourteen years
      old on August 31, 1995.

The trial court rejected the instruction. Accordingly, the trial court did not instruct

the jury as to the applicability of section 194.010.

      We have “grave doubts” as to whether the trial court’s error was harmless.

See Garcia v. Long, 808 F.3d 771, 781 (9th Cir. 2015) (“[The Brecht] standard is

satisfied if the record raises ‘grave doubts’ about whether the error influenced the

jury’s decision.”). Juries are presumed to follow the instructions given to them by

the trial court. Vitello v. United States, 425 F.2d 416, 422 (9th Cir. 1970). Thus,

had the trial court given the instruction, the jury would have been required to

presume that Elvik was not liable for his actions, unless the government proved by

clear evidence that Elvik knew (at the time he committed the crimes) that his

conduct was wrong. The trial court’s failure to give the instruction relieved the

government of its burden of proving an element of the crime.

      The government contends that, even without the instruction, the record

contains sufficient evidence indicating that Elvik understood the wrongfulness of

his actions, and that he cannot meet the standard that there was “much more than a

‘reasonable possibility’ that the result of the [trial] would have been different.”

Davis, 135 S. Ct. at 2203 (citing Brecht, 507 U.S. at 637). The evidence in the



                                          -5-
record, however, is mixed. Some evidence suggests that Elvik may have known

that what he did was wrong. He fled from a motel when informed the police were

coming, he hid the victim’s handgun and money clip, he gave the police a false

name, and he testified at trial that he “didn’t want some little kid to find the

[handgun], or shoot, you know, or anything like that.” Other evidence, however,

suggests that Elvik was immature and childish, and did not understand the

wrongfulness of his actions. He remarked that he might not live long because of

“some big earthquake,” he referred to his mother with a crude expletive, he

believed he would be sent to juvenile detention, and he testified at trial that he was

scared and did not think anyone would believe him. Still more evidence could be

viewed by the jury to support either contention, such as Elvik’s made up story of

being under the influence of LSD. On the basis of the full record and given the

state’s burden of proof we are persuaded that had the jury been properly instructed,

there was a reasonable probability the jury would have acquitted him, not merely a

reasonable possibility that they could have. We agree with the district court and

conclude that the trial court’s failure to provide a jury instruction regarding section

194.010 was not harmless.

      Because we affirm the district court’s conditional grant of Elvik’s habeas

petition, we do not reach the issues raised in Elvik’s cross appeal.


                                           -6-
AFFIRMED.




            -7-
                                                                              FILED
                                                                               OCT 26 2016
                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


KRONSTADT, District Judge, concurring in part and dissenting in part:

       I concur with the conclusion of the majority that “[t]he district court was not

obligated to develop alternative theories to support the Nevada Supreme Court’s

decision.” I also agree with its statements that “Nevada Revised Statute section

194.010 creates a presumption that children (between the ages of eight years and

fourteen years) lack the capacity to distinguish right from wrong” and that as a

result, “the prosecution bears the burden of rebutting this presumption by

establishing, through clear proof, ‘that at the time of committing the act . . . [the

child] knew its wrongfulness.’” (quoting Nev. Rev. Stat. § 194.010). Finally, I

agree with the majority’s description of the Brecht standard, which on collateral

review governs the determination of whether an error is harmless, as clarified in

Davis v. Ayala, 135 S. Ct. 2187 (2015). I disagree, however, with the application of

the Brecht standard by the majority to the record evidence. Therefore, I

respectfully dissent from its conclusion that “[t]he trial court’s failure to provide

the jury with an instruction regarding Nevada Revised Statute section 194.010 was

not a harmless error.”

      As the majority observes, “[t]he government contends that, even without the

instruction, the record contains sufficient evidence indicating that Elvik understood
the wrongfulness of his actions.” The majority then states that the evidence in the

record is “mixed” and concludes that “[o]n the basis of the full record and given the

state’s burden of proof we are persuaded that had the jury been properly instructed,

there was a reasonable probability the jury would have acquitted him, not merely a

reasonable possibility that they could have.” It is with these conclusions that I

respectfully disagree.

      In my view, the record evidence is not “so evenly balanced” that a judge

could feel “in virtual equipoise as to the harmlessness of the error” or have “grave

doubt about whether an error affected a jury [substantially and injuriously] . . . . ”

Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (alteration in original)(internal

quotation marks omitted) (citing O'Neal v. McAninch, 513 U.S. 432, 435, 437–38

(1995)). Instead, a consideration of the record evidence as a whole supports the

conclusion that the error did not have a substantial and injurious effect or influence

on the verdict. For these reasons, “on the record in this case, [defendant] cannot

establish actual prejudice . . . .” Davis, 135 S. Ct. at 2203.

      The following record evidence, some of which is cited by the majority, in my

view shows that Elvik had a level of sophistication and understanding that would

cause any reasonable jury to conclude that, when he shot and killed the victim,

Elvik knew the difference between right and wrong:


                                            -2-
      1. Elvik previously had been arrested for stealing a motor vehicle.

      2. After the shooting, Elvik took the victim's briefcase and handgun. The

briefcase contained the victim's money clip and the keys to his vehicle. Elvik then

drove the victim's vehicle nearly five hundred miles from Carson City, Nevada to

Costa Mesa, California.

      3. After arriving in California, Elvik contacted his 13-year-old girlfriend,

picked her up in the victim's vehicle, and checked into a motel with her for the

night. He took the victim's handgun and money clip into the motel room.

      4. The day after the shooting, at approximately 3:00 a.m., California law

enforcement personnel, who had become aware of the events in Nevada, identified

the vehicle outside the motel as the one that belonged to the victim of the shooting.

They contacted the person working at the front desk of the motel from whom they

learned that Elvik was the guest associated with that vehicle. Shortly thereafter, the

person at the front desk called the room in which Elvik and his girlfriend were

staying and told him to flee. Elvik and his girlfriend left the room. Elvik jumped

from the balcony. Although his girlfriend was promptly apprehended, Elvik evaded

law enforcement personnel for the next 14 hours. During that time, he hid the

victim's handgun and money clip.




                                          -3-
      5. Elvik testified at trial that he later went back and retrieved the handgun

because he “didn't want nobody to find it. I didn't want some little kid to find it, or

shoot, you know, or anything like that.”

      6. Upon being detained, but prior to his arrest, Elvik gave a false name to the

police. He later told them his actual name.

      7. After being held, and given a Miranda warning, Elvik initially denied any

recollection of the shooting. He stated that he had taken LSD and that this likely

clouded his memory. Later in that interrogation, Elvik admitted to shooting the

victim. At trial, Elvik stipulated that a blood test showed that he was not under the

influence of LSD, and he testified that he had lied when he told the police

otherwise.

      8. During the same interrogation, Elvik asked whether his actions in Nevada

would result in his confinement in a juvenile hall in Nevada or California. This

showed sophistication about the link between where a crime is committed and the

place of any resulting confinement.

      9. During the same interrogation, Elvik stated that he had considered leaving

the victim's handgun with Elvik's friend Stephen. He stated, “I didn't want to give it

to [Stephen] because I guess he's like on probation for doing drugs or something. So

I didn't want him to get in trouble for it but, you know?” He stated that he then


                                           -4-
decided to give the gun to Stephen with the expectation that Stephen would “take it

over to [Elvik's] mom's office or whatever or the police station or whatever he's

going to do with it.”

      10. At the time of the shooting, Elvik was 14 years and 11 months old. Thus,

within a month he no longer would have qualified for the instruction under

Nev.Rev.Stat. § 194.010(2).

      In my view, a consideration of the other evidence in the record, some of

which is also mentioned by the majority, does not show that the totality of the

evidence was “equally balanced” such that a judge could be in equipoise as to the

issue of harmless error. Elvik relies on the following evidence to support his

contrary position:

      1. During his interrogation, he referred to his mother, who had disowned him

and denied his request to return to her in California, by using a crude expletive;

      2. He stated that he might not have a long life ahead of him because there

might be “some big earthquake” and he might “fall in the crack and then [ ]die”;

      3. He answered some questions with “ah huh” instead of “yes” during his

interrogation;




                                          -5-
      4. He did not surrender to the police because he was “scared” and did not

“think anyone would believe” him, something consistent with the recognition that

he knew that his conduct was wrongful;

      5. During the interrogation, after being told that “everybody's going to know

exactly what happened” and that this was Elvik's “chance to fill in, maybe, a couple

of little minor details,” Elvik asked “why does it matter, whatever I tell you?”

However, in context, these words demonstrate that Elvik was asking why he needed

to state what he had done given the evidence the police already had collected1; and

      6. At the conclusion of the initial interrogation, Elvik asked if he would be

sent to juvenile hall in Nevada or California. As stated above, this reflects

sophistication. Moreover, even if this implied that Elvik misunderstood the




       1
        After being asked to “fill in the little details” because the police “d[id]n't
know exactly, you know, step by step what happened,” Elvik asked, “Well, what
does it matter anyway[?]” After being told that what happened was not “going to
be a real big mystery,” Elvik asked, “Yeah, I know, so why . . . why does it matter,
whatever I tell you?” Elvik later stated, “Well . . . well, you obviously already
know what happened, so what does it matter what I say?” Subsequently, after
being told that his girlfriend had stated that Elvik told her that he shot the victim,
Elvik responded, “It doesn't matter anyways.” Later, after being asked whether the
victim fell on his back or on his stomach after being shot, Elvik stated, “So, even if
I do know, what is it . . . who cares?” After being told that things were “f* * * * *
right now” and that they were “going to stay that way for awhile,” Elvik asked, “So
what's the difference if they're going to stay like that?”

                                          -6-
seriousness of the punishment that might be imposed for killing the victim, it did

not imply that he did not know that his conduct was wrongful.

      To make the determination of “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 2198 (internal quotation marks omitted) (quoting O'Neal, 513 U.S. at

436), it is necessary to consider the effect of the error in light of all the evidence

presented to the jury. The question is not whether the jury was “right in their

judgment” but is, instead, “what effect the error had or reasonably may be taken to

have had upon the jury's decision.” Kotteakos v. United States, 328 U.S. 750, 764

(1946). This analysis “must take account of what the error meant to [the jury], not

singled out and standing alone, but in relation to all else that happened.” Id. A

conviction may not be overturned on “mere speculation that the defendant was

prejudiced by trial error”; actual prejudice must be suffered. Calderon v. Coleman,

525 U.S. 141, 146 (1998); see also Fry v. Pliler, 551 U.S. 112, 119 (2007); Brecht

v. Abrahamson, 507 U.S. 619, 637 (1993). Thus, “[t]here must be more than a

‘reasonable possibility’ that the error was harmful.” Davis, 135 S. Ct. at 2198

(quoting Brecht, 507 U.S. at 637). In assessing actual prejudice to the defendant, all

relevant record evidence should be considered.




                                            -7-
      For these reasons, which are based on a review of the relevant record, I am

not persuaded that Elvik suffered actual prejudice because the instruction that he

requested was not read to the jury. Given the evidence at trial, I respectfully

disagree that a reasonable jury could have concluded that Elvik did not understand

the wrongfulness of his actions. That killing another person is wrongful is among

the oldest and best established rules of civilization. As such, “[t]here is no basis for

finding that [defendant] suffered actual prejudice . . . .” Davis, 135 S. Ct. at 2208.




                                           -8-
