                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 DAVID A. RADEMAKER,                         No. 14-56946
      Petitioner-Appellant,
                                              D.C. No.
                v.                    2:08-cv-08486-VAP-CW

 DANIEL PARAMO, Warden,
      Respondent-Appellee.                     OPINION


        Appeal from the United States District Court
            for the Central District of California
        Virginia A. Phillips, District Judge, Presiding

                     Submitted March 10, 2016*
                        Pasadena, California

                       Filed August 30, 2016

     Before: Richard R. Clifton, Consuelo M. Callahan,
            and Sandra S. Ikuta, Circuit Judges.

                     Opinion by Judge Callahan




  *
    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                    RADEMAKER V. PARAMO

                           SUMMARY**


                          Habeas Corpus

   The panel affirmed the district court’s denial of David
Rademaker’s habeas corpus petition challenging his
California state conviction for first-degree murder with a
special circumstance for committing the murder during the
commission of a kidnapping.

    The jury found the special circumstance based on an
erroneous jury instruction regarding the element of
asportation. The panel held that the California Court of
Appeal’s determination that the instructional error was
harmless beyond a reasonable doubt was not an objectively
unreasonable application of Chapman v. California, 386 U.S.
18 (1967).


                             COUNSEL

Tracy J. Dressner, La Crescenta, California, for Petitioner-
Appellant.

Allison H. Chung, Deputy Attorney General; Stephanie C.
Brenan, Supervising Deputy Attorney General; Lance E.
Winters, Senior Assistant Attorney General; Gerald A.
Engler, Chief Assistant Attorney General; Kamala D. Harris,
Attorney General; Office of the Attorney General, Los
Angeles, California, for Respondent-Appellee.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  RADEMAKER V. PARAMO                       3

                         OPINION

CALLAHAN, Circuit Judge:

    Kimberly Pandelios disappeared on February 27, 1992.
In March 1993, hikers discovered some of her remains in the
Angeles National Forest but her disappearance remained a
mystery until 2004, when evidence surfaced linking David
Rademaker to her death. At Rademaker’s trial, the evidence
established that Rademaker lured Pandelios to a secluded
location on the Angeles Crest Highway for a photo shoot,
then abducted and drowned her in a nearby creek. A jury
convicted Rademaker of first-degree murder. Based on an
erroneous jury instruction regarding the element of
asportation, the jury also found true the special circumstance
that Rademaker committed the murder during the commission
of a kidnapping. The California Court of Appeal affirmed the
conviction on direct appeal. People v. Rademaker, No.
B190134, 2007 WL 1982272 (Cal. Ct. App. July 10, 2007),
modified on denial of reh’g (July 27, 2007). Applying
Chapman v. California, 386 U.S. 18, 24 (1967), the court
found the instructional error “harmless beyond a reasonable
doubt” under state law. On habeas review and subject to the
Antiterrorism and Effective Death Penalty Act (AEDPA),
28 U.S.C. § 2254(d), we must decide whether the state court’s
harmless-error determination was objectively unreasonable.
We hold that it was not.

                       I. Background

                             A.

   Pandelios, an aspiring model, was 21 years old when she
answered a modeling recruitment advertisement placed by
4                    RADEMAKER V. PARAMO

someone purporting to be a magazine photographer. The
photographer turned out to be Rademaker, who was 28 years
old, and the photo shoot a ruse to demand sex.1 Pandelios
agreed to meet Rademaker on February 27, 1992. That day,
she was seen wearing a blue suit, white blouse, and high
heels.

     About 1 p.m., Pandelios drove her car to meet Rademaker
at a location on the Angeles Crest Highway, near the Angeles
National Forest. When the two met, Rademaker made a
sexual overture, which Pandelios rebuffed.             After
overpowering and anally penetrating her, he pushed her head
into a creek and drowned her.

    Later that evening, a Los Angeles deputy sheriff spotted
Pandelios’s car parked on the shoulder of the Angeles Crest
Highway, just north of the Monte Cristo campground. The
car appeared to be vacant and in good condition. Some time
later, Rademaker returned to the car with C.H., a 14-year-old
girl with whom he had developed a sexual relationship.
Unaware of the murder, C.H. watched as Rademaker squirted
charcoal lighter fluid inside the car and lit it on fire. The
blaze eventually caught the attention of a second deputy
sheriff, who noticed that the fire emanated from the front
passenger side rather than from the engine compartment,
indicating an intent to destroy evidence or to commit suicide.

    1
     According to testimony from Richard Albertini, whom Rademaker
befriended in the mid-1980s, Rademaker was involved in a prostitution
outcall business. He would place advertisements in LA Express with
pictures of nearly nude girls along with a phone number. After a potential
customer left a message at the phone number in the ad, Rademaker would
vet the customer and then return the call using a router so his phone call
could not be traced. Rademaker would then arrange a meeting between
the prostitute and the customer.
                     RADEMAKER V. PARAMO                                 5

    In the days that followed, police recovered an empty
charcoal lighter fluid container, a plastic lighter and a
handcuff key—all observed in the vicinity of Pandelios’s car.
A month later, hikers found Pandelios’s appointment book at
the bottom of a bridge, next to a nearby creek.

    It took a year for anyone to discover Pandelios’s remains,
however. In March 1993, hikers discovered her skull and
pelvic bone in an isolated, wooded area near the Monte Cristo
campground. The area, known as the “cement slab,” included
a creek or stream bed. A bra similar to Pandelios’s was found
in the vicinity of the skull, as well as pantyhose. Both bra
straps had been severed by a sharp object like a knife, razor
or scissors, enabling the bra to be removed if the victim’s
hands were bound or handcuffed. The pantyhose had also
been severed by a sharp object.

    In March 1993, a forensic anthropologic recovery team
investigated the location where the skull had been recovered
and found Pandelios’s fractured mandible2 as well as a pair of
handcuffs, hair, fabric, and Pandelios’s ring and earrings.
Two years later, a leg bone was found in the creek near the
“cement slab.”

    Pandelios’s case went cold. In January 2004, just after
Rademaker was released from prison for unrelated crimes, the
cold case unit coincidentally began looking into Pandelios’s
disappearance. Police learned that during the course of a
sexual relationship with M.K., another 14-year-old girl,


  2
    According to the stipulated findings of a dental expert, blows from a
small, hard round object could have caused the fracturing of the front part
of the jaw and the fracturing and chipping of several teeth. The expert
also found that these injuries likely occurred around the time of death.
6                   RADEMAKER V. PARAMO

Rademaker drove M.K. to the Angeles Forest and confessed
to sodomizing and murdering “a blonde model that he met
through a personal ad.”3 Rademaker told M.K. that the
murder was featured on Unsolved Mysteries but that the show
got it wrong because it reported that the suspects were
tattooed bikers.

    Police also contacted C.H., whose name appeared in
Pandelios’s case file and was described as a girlfriend of
Rademaker at the time Pandelios disappeared. C.H.
cooperated with law enforcement to elicit a confession from
Rademaker. During recorded conversations, Rademaker
admitted that he had set fire to the car while C.H. was
present. Police arrested Rademaker during the course of this
surveillance.

                                 B.

    Rademaker was indicted for Pandelios’s murder. The
prosecution alleged that the murder took place during the
commission of a kidnapping, a special circumstance charged
under California Penal Code § 190.2(a)(17)(B) and requiring
proof of asportation—i.e., the “carrying away of the victim.”
Laurel v. Superior Court of Los Angeles Cty., 255 Cal. App.
2d 292, 298 (1967); see Cal. Penal Code § 207(a) (“Every
person who forcibly . . . steals or takes, or holds, detains, or
arrests any person in this state, and carries the person . . . into
another part of the same county, is guilty of kidnapping.”).
At the time, California Jury Instruction–Criminal No. 9.50


    3
     Although it was alleged that the murder was committed while
Rademaker engaged in unlawful sodomy, the jury found this special
circumstance not true. Rademaker, 2007 WL 1982272, at *1 n.2; see Cal.
Penal Code § 190.2(a)(17)(D).
                  RADEMAKER V. PARAMO                        7

defined asportation as the movement of a victim “for a
substantial distance, that is, a distance more than slight or
trivial.” Rademaker, 2007 WL 1982272, at *5 (quoting
CALJIC 9.50 (6th ed. 1996)). The definition was based on
state supreme court precedent. People v. Caudillo, 21 Cal. 3d
562, 572 (1978) (citing People v. Stanworth, 11 Cal. 3d 588,
601 (1974)).

    The California Supreme Court enlarged the definition of
asportation in 1999, overruling Caudillo. People v. Martinez,
20 Cal. 4th 225, 237–38 & n.6 (1999). In Martinez, the court
adopted a totality of the circumstances standard, holding that
factors other than actual distance may be relevant to
asportation. Id. California Jury Instruction–Criminal No.
9.50 was thus revised to conform to Martinez. The new
version stated in pertinent part:

       A movement that is only for a slight or trivial
       distance is not substantial in character. In
       determining whether a distance that is more
       than slight or trivial is substantial in character,
       you should consider the totality of the
       circumstances attending the movement,
       including but not limited to, the actual
       distance moved, or whether the movement
       increased the risk of harm above that which
       existed prior to the movement, or decreased
       the likelihood of detection, or increased both
       the danger inherent in a victim’s foreseeable
       attempt to escape and the attacker’s enhanced
       opportunity to commit additional crimes.

CALJIC No. 9.50 (1999 rev.). The comment to the revision
admonished: “This 1999 revision cannot be applied
8                 RADEMAKER V. PARAMO

retroactively.” Id. (citing Martinez); see Martinez, 20 Cal.
4th at 240–41.

    At the close of evidence, the trial judge sua sponte
charged the jury using the revised instruction even though the
instruction was not in effect at the time of the murder. In
2006, a jury found Rademaker guilty of murder. Cal. Penal
Code § 187(a). As to the special circumstance, the jury
applied the court’s instruction and found that the evidence
proved kidnapping beyond a reasonable doubt. The trial
court sentenced Rademaker to life without the possibility of
parole based on this finding.

    Rademaker appealed, principally contending that he was
prejudiced by the trial judge’s use of the 1999 instruction.
The California Court of Appeal unanimously affirmed his
conviction in a reasoned (unpublished) decision. Rademaker,
2007 WL 1982272. The court held that the trial court’s
instruction was erroneous as a matter of state law, then
applied the Supreme Court’s harmless-error rule established
in Chapman. Id. at *4–8 & n.6. The court determined:

       Although the precise spot of her murder was
       not pinpointed, it was reasonable for the jury
       to infer that [Rademaker]’s intent was to kill
       Pandelios far from prying eyes and that
       having selected the spot that suited his
       nefarious purpose, [Rademaker] did not intend
       to drag the body for any great distance.
       Accordingly, the jury was entitled to find
       [Rademaker] murdered Pandelios at some
                  RADEMAKER V. PARAMO                         9

        spot not far from the cement slab, which was
        at least a mile from where [he] abducted her.

Id. at *8.

    Rademaker appealed the decision to the California
Supreme Court, but the court denied review of his claims on
October 17, 2007. On habeas review, the district court denied
relief under AEDPA. This timely appeal followed.

                   II. Standard of Review

    Rademaker filed his petition for habeas corpus after April
24, 1996, therefore AEDPA applies to his claim of
instructional error. Mann v. Ryan, — F.3d —, 2016 WL
3854234, at *6 (9th Cir. 2016) (en banc). Where a claim is
adjudicated on the merits in state court, we review that claim
to determine whether its adjudication 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) 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); Davis v.
Ayala, 135 S. Ct. 2187, 2198 (2015). “We review the last
reasoned state court decision according to this deferential
standard.” Mann, 2016 WL 3854234, at *6. We review de
novo the district court’s application of AEDPA to that
decision. Id.

     Under AEDPA’s “contrary to” clause, we examine
whether “the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or
if the state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.”
10                RADEMAKER V. PARAMO

Mann, 2016 WL 3854234, at *7 (alterations in original)
(quoting Williams v. Taylor, 529 U.S. 362, 412–13 (2000)).
Under the “unreasonable application” clause, “[we] must
determine what arguments or theories supported or . . . could
have supported[] the state court’s decision; and then [we]
must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision of [the Supreme] Court.”
Harrington v. Richter, 562 U.S. 86, 102 (2011). The inquiry
requires us to determine whether a petitioner has shown that
the state court applied a clearly established Supreme Court
holding “in an ‘objectively unreasonable’ manner”—i.e., “the
state court’s decision to reject his claim ‘was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.’” Ayala, 135 S. Ct. at 2198–99
(quoting Mitchell v. Esparza, 540 U.S. 12, 18 (2003) (per
curiam); Richter, 562 U.S. at 103).

                        III. Analysis

    There is no dispute that the trial court erred in using the
expanded, non-retroactive asportation instruction. The error,
Rademaker contends, violated his federal constitutional
rights. We need not resolve that contention. Because the
California Court of Appeal applied Chapman, we may
assume that it found the trial court’s error to be a federal
constitutional error.     See Martinez, 20 Cal. 4th at
238–41(holding that retroactive application of the revised
kidnapping instruction was barred by the federal Due Process
Clause); see also Ayala, 135 S. Ct. at 2195, 2197 (making a
similar assumption when the state court applied Chapman
without deciding whether an error violated the federal
Constitution). Thus, the only question raised by this appeal
                     RADEMAKER V. PARAMO                              11

is whether the California Court of Appeal reasonably
concluded that the error was “harmless beyond a reasonable
doubt.” Chapman, 386 U.S. at 24.

    “When a Chapman decision is reviewed under AEDPA,
‘a federal court may not award habeas relief under § 2254
unless the harmlessness determination itself was
unreasonable.’” Ayala, 135 S. Ct. at 2199 (quoting Fry v.
Pliler, 551 U.S. 112, 119 (2007)). As the California Court of
Appeal found, the trial court’s use of the expanded definition
of asportation was an error of state law. Assuming that the
error is also a federal constitutional error, however, the error
did not prejudice Rademaker since the jury would have
properly convicted him of kidnapping—under either
definition of asportation—if it found the victim was moved
a “substantial distance” of at least 200 feet. Rademaker, 2007
WL 1982272, at *7. Critically, the circumstantial evidence
cited by the court showed that Rademaker moved Pandelios
roughly one to one and one-half miles. Id. at *7–8.4 The
evidence included testimony about Rademaker’s regular visits
to the Angeles National Forest in his SUV; the timing and
location of Pandelios’s disappearance, which occurred on the
very day she was scheduled to meet Rademaker for a photo
shoot in the vicinity of the forest; and the discovery of
Pandelios’s car parked about a mile or a mile and a half from
the handcuffs, Pandelios’s remains and her personal effects.
Id. In light of this evidence, it was not objectively
unreasonable for the state appellate court to conclude that the


  4
    The California Court of Appeal observed that “[Rademaker] did not
challenge the evidence of the distances involved, nor did he contest that
the actual distance the victim was moved was substantial in character.”
Id. at *5. At trial, however, Rademaker contested that Pandelios was
moved against her will.
12                RADEMAKER V. PARAMO

evidence supported the jury’s finding that Rademaker carried
Pandelios a “substantial distance.” The conclusion gave
effect to the proper instruction, thus rendering the charging
error harmless beyond a reasonable doubt. Because “a
fairminded jurist could agree” with the state court’s Chapman
determination, Rademaker “necessarily cannot satisfy” the
requirement under Brecht v. Abrahamson, 507 U.S. 619, 637
(1993), of showing that he was “actually prejudiced” by the
trial court’s error. Ayala, 135 S. Ct. at 2199.

                      IV. Conclusion

    The state court’s harmless-error determination was not an
objectively unreasonable application of Chapman. We
therefore AFFIRM the district court’s denial of habeas relief.
