                                                                                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                             NOT FOR PUBLICATION                                 OCT 09 2012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



                                           3
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




                                          4
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



                                           5
homicide and also informed the jury of its responsibility to find all the elements of

felony-murder.

      AFFIRMED.




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