                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 22 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


KINZIE GENE NOORDMAN,                            No. 12-56194

              Petitioner - Appellant,            D.C. No. 5:09-cv-00409-JFW-JCG

  v.
                                                 MEMORANDUM*
JAMES E. TILTON,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                      Argued and Submitted October 10, 2014
                               Pasadena, California

Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.

       Kinzie Noordman, a California state prisoner, appeals the district court’s

denial of her petition for habeas corpus. Her appeal challenges her conviction on




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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one count of first degree murder with a sentencing enhancement for use of a

firearm “in the commission” of the murder. We affirm.

      1. We give deference under the Anti-Terrorism and Effective Death Penalty

Act, 28 U.S.C. § 2254(d), to the California state court’s factual conclusion that

Noordman waived (both personally and by counsel) her right to be present for the

trial judge’s answer of the jury’s questions. The record reflects Noordman’s

waiver, and the trial judge said on the record that he had consulted the attorneys

about the answer he was about to give, and that both attorneys had agreed he could

give that answer, which is sufficient basis for the state court’s determination that

consultation occurred.

      2. The trial court did not direct a verdict against Noordman by telling the

jury that it need not worry about “the law pertaining to shooting a dead body.” The

California Superior Court that denied Noordman’s habeas petition was not

unreasonable in determining that the jury was asking only about the law, rather

than the act. That is, the jury was asking about the legal consequences of shooting

a dead body rather than whether the body that was shot was dead. Moreover, the

prosecutor’s theory of murder did not turn on whether Noordman fired the fatal

shot, but on Noordman’s actions as a principal in the planning and commission of

the murder. Thus, even if the judge’s answer to the jury was incorrect, it did not

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    advance the prosecution’s stated theory, meaning it did not so “infect[] the entire

    trial that the resulting conviction violate[d] due process.” Estelle v. McGuire, 502

    U.S. 62, 72 (1991).

          3. Noordman was not prejudiced by the trial court’s failure to give sua

    sponte an instruction that a person is responsible for the “natural and probable

    consequences” of her actions. Her attorney was specifically asked if he wanted the

    instruction, and declined. Moreover, the California Superior Court was not

    unreasonable when it noted the low probability of jury misapplication of this

    doctrine because the prosecution never argued this theory of liability to the jury,

    and the impossibility of prejudice to Noordman when the instruction would have

    provided but yet another way to convict Noordman.

          The district court’s judgment denying Noordman’s petition for the writ of

    habeas corpus is AFFIRMED.

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