                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 DERRICK LOFTIS,                                   No. 09-16884
               Petitioner-Appellant,
                                                     D.C. No.
                     v.                          1:07-cv-010603-
                                                    JAH-LSP
 VICTOR ALMAGER, Warden
             Respondent-Appellee.                    OPINION


        Appeal from the United States District Court
            for the Eastern District of California
         John A. Houston, District Judge, Presiding

                   Argued and Submitted
        February 16, 2012—San Francisco, California

                    Filed December 11, 2012

   Before: A. Wallace Tashima and Barry G. Silverman,
   Circuit Judges, and Lynn S. Adelman,* District Judge.

                 Opinion by Judge Adelman;
               Concurrence by Judge Silverman;
                  Dissent by Judge Tashima




 *
   The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of W isconsin, sitting by designation.
2                       LOFTIS V . ALMAGER

                           SUMMARY**


                          Habeas Corpus

   The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a no
contest plea to second degree murder that petitioner alleged
was not knowing and voluntary.

     Judge Adelman wrote that, although Federal Rule of
Criminal Procedure 11 and its state analogs require that a plea
be supported by a factual basis, the state trial court’s failure
to find one for Loftis’s plea–unaccompanied by protestations
of innocence–did not present a constitutional issue cognizable
under § 2254. In this case, petitioner’s plea was not made
under Alford or a state analog that would trigger a factual
basis requirement.

    Judge Silverman concurred only in the result. He agreed
with Judge Tashima that a factual basis is required for an
Alford plea or the no contest plea entered in this case pursuant
to People v. West, 477 P.2d 409 (Cal. 1970) (California’s
Alford analog). If a trial court fails to establish a factual
basis, Judge Silverman would look to a pre-sentence report
prepared by the probation department to see whether the error
was harmless. Here, the answer is yes because the report
contains facts to support the plea. Judge Silverman next
would determine whether the facts set forth in the probation
report establish a factual basis for the plea under California
law, and would conclude that they did in this case.

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

     Judge Tashima dissented because Loftis’s West plea was
tantamount to a claim of innocence, and the trial court thus
violated clearly established federal law when it failed to
identify any factual basis for the plea. Judge Tashima would
hold that this error had a substantial and injurious effect on
the proceedings because nothing in the record suggests that
Loftis acted with knowledge that he was endangering human
life.


                         COUNSEL

Daniel J. Broderick, Federal Defender, Carolyn M. Wiggin,
Assistant Federal Defender, Sacramento, California, for
Petitioner-Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell,
Senior Assistant Attorney General, Justain P. Riley, Deputy
Attorney General, Kathleen A. McKenna, Supervising
Deputy Attorney General, for the Respondent-Appellee.


                          OPINION

ADELMAN, District Judge:

    Petitioner-Appellant Derrick Loftis seeks a writ of habeas
corpus challenging his California conviction of second degree
murder. The district court denied the petition, but we issued
a certificate of appealability regarding whether there was a
sufficient factual basis to support Loftis’s no contest plea and
whether his plea was knowing and voluntary. We now
affirm.
4                  LOFTIS V . ALMAGER

           I. FACTS AND BACKGROUND

   The pertinent facts, as set forth in the state appellate
court’s opinion, are as follows:

       On February 27, 2004, [Loftis] and Richard
       Banuelos received a telephone call from
       15-year-old Celena V. She informed them she
       wanted to buy an eight-ball of crystal
       methamphetamine. They went to pick her up
       and she got into the vehicle. They drove to
       the Holiday Lodge, where defendant kept his
       bag of methamphetamine. [Loftis] and Celena
       were in a room alone. Celena bought the
       methamphetamine from defendant for $100,
       then she smoked and snorted some of it.
       [Loftis] also consumed some with her.
       [Loftis] and Celena had been in the room for
       about 45 minutes when Celena began to “get
       ‘crazy’ by freaking out, getting hot and
       shaking.” Banuelos called and asked [Loftis]
       if they were ready to go. Banuelos arrived
       and the three of them left together. They went
       to [Loftis’s] residence and Banuelos gave
       Celena some milk.

       Leslie Saiz arrived at the residence. [Loftis]
       wanted to go to the Palace casino to look for
       his girlfriend. Although Celena had not
       improved, [Loftis] did not take her to the
       hospital just down the street because “it never
       crossed his mind.” Instead, the four of them
       got in the vehicle and drove toward the
       Palace. [Loftis] noticed Celena was not
                    LOFTIS V . ALMAGER                     5

       breathing. He shook her and told the others
       he wanted to take her to the hospital, but Saiz
       said [“N]o, ... she was [dead.”] They had
       decided not to seek medical care because they
       feared going to jail. They stopped on a gravel
       road and Saiz and Banuelos took Celena out
       of the car, laid her on the ground and covered
       her with tumbleweeds. [Loftis] did not get
       out because he was feeling too sick to move.
       They drove on to the Palace to meet [Loftis’s]
       girlfriend.

       Once at the Palace, [Loftis] played slot
       machines and met up with his girlfriend.
       They went home and [Loftis] was sick the
       whole day and night. [Loftis] thought the
       methamphetamine must have been bad since
       he also got sick.

       The following night, Celena’s parents filed a
       missing person report. About a month later,
       Celena’s body was found and a few days after
       that [Loftis] was interviewed. He first denied
       any involvement in Celena’s death, then
       stated she had overdosed. He then gave the
       preceding account.

People v. Loftis, No. F050676, 2007 WL 1248492, at *1 (Cal.
Ct. App. May 1, 2007).

    Initially charged with murder in the death of Celina V.,
along with four other counts, Loftis later agreed to plead no
contest to second degree murder in exchange for dismissal of
the other charges. The state trial court conducted a thorough
6                    LOFTIS V . ALMAGER

plea colloquy, ensuring that Loftis understood the nature of
the charges, the penalties he faced and the rights he was
relinquishing. The following exchange then occurred:

        “THE COURT: Factual basis.

       “[DEFENSE COUNSEL]: Your Honor,
       pursuant to People versus West [(1970) 3 Cal.
       3d 595, defendant] is entering this plea to
       avoid the possibility of being convicted of
       first degree murder.

       “THE COURT: Is that correct, [Prosecutor]?

       “[PROSECUTOR]: That is correct, it’s People
       versus West.

       “THE COURT: Okay. The Court will accept,
       will be willing to accept it pursuant to People
       versus West.

Id. at *3. The trial court then verified that Loftis understood
his no contest plea and accepted it. At no point did Loftis
proclaim his innocence or otherwise protest. The trial court
later sentenced Loftis to 15 years to life in prison.

    Loftis appealed, arguing that the trial court failed to
establish a factual basis for his no contest plea. Specifically,
he argued that the record failed to present such a basis
because there was no evidence that he intended to kill Celena
and no evidence that he engaged in an inherently dangerous
felony when he sold the methamphetamine to Celena. The
state appellate court agreed that a factual basis was necessary
as a matter of California law but found that any error was
                     LOFTIS V . ALMAGER                         7

harmless because the record contained facts supporting a
finding that Loftis knew that his failure to seek medical care
for Celena placed her life in danger and, therefore, constituted
“implied malice murder” under California law. The
California Supreme Court denied Loftis’s petition for review.

                      II. DISCUSSION

    It is axiomatic that habeas relief lies only for violations of
the Constitution, laws, or treaties of the United States; errors
of state law will not suffice. E.g., Estelle v. McGuire,
502 U.S. 62, 67–68 (1991). Consequently, we must
determine whether Loftis’s factual basis claim raises a federal
constitutional issue.

    The Constitution requires that a plea be knowing,
intelligent, and voluntary. E.g., Boykin v. Alabama, 395 U.S.
238, 244 (1969). The record must show that the defendant
voluntarily relinquished his privilege against self-
incrimination, his right to trial by jury and his right to
confront his accusers, e.g., United States v. Escamilla-Rojas,
640 F.3d 1055, 1062 (9th Cir. 2011), cert. denied,
81 U.S.L.W. 3161 (U.S. Oct. 1, 2012), and that he understood
the nature of the charges and the consequences of his plea,
e.g., Tanner v. McDaniel, 493 F.3d 1135, 1146–47 (9th Cir.
2007); Little v. Crawford, 449 F.3d 1075, 1080 (9th Cir.
2006).

    Beyond these essentials, the Constitution “does not
impose strict requirements on the mechanics of plea
proceedings.” Escamilla-Rojas, 640 F.3d at 1062 (citing
Brady v. United States, 397 U.S. 742, 747 n.4 (1970)). While
Fed. R. Crim. P. 11 and its state analogs require additional
safeguards, violations of such rules do not ordinarily render
8                     LOFTIS V . ALMAGER

a plea constitutionally infirm and thus vulnerable to collateral
attack. See, e.g., United States v. Timmreck, 441 U.S. 780,
783–84 (1979); see also Estelle, 502 U.S. at 68 n.2.

    Among the requirements imposed on trial judges by rule
– but not the Constitution – is the finding of a factual basis.
See, e.g., Higgason v. Clark, 984 F.2d 203, 208 (7th Cir.
1993) (“Putting a factual basis for the plea on the record has
become familiar as a result of statutes and rules, not as a
result of constitutional compulsion.”). Accordingly, habeas
courts have held that, unless a plea is accompanied by
protestations of innocence or other “special circumstances,”
the Constitution does not require state judges to find a factual
basis. E.g., Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir.
1985); see also Meyers v. Gillis, 93 F.3d 1147, 1151 (3d Cir.
1996) (“Put simply, the Due Process Clause of the Fourteenth
Amendment to the United States Constitution does not
require an on-the-record development of the factual basis
supporting a guilty plea before entry of the plea, and the
failure of a state court to elicit a factual basis before accepting
a guilty plea does not in itself provide a ground for habeas
corpus relief under 28 U.S.C. § 2254.”). Cf. Willett v. State
of Ga., 608 F.2d 538, 540 (5th Cir. 1979) (holding that under
North Carolina v. Alford, 400 U.S. 25 (1970), “when a
defendant pleads guilty while claiming his or her innocence,
the court commits constitutional error in accepting the plea
unless the plea is shown to have a factual basis”).

    Loftis cannot obtain habeas relief because the state trial
court’s failure to find a factual basis for his no contest plea –
unaccompanied by protestations of innocence – does not
present a constitutional issue cognizable under 28 U.S.C.
§ 2254. See, e.g., Bonior v. Conerly, 416 Fed. App’x 475,
476 (6th Cir. 2010) (holding that a prisoner’s claim that there
                     LOFTIS V . ALMAGER                         9

was an insufficient factual basis to support his no contest plea
to lesser charges was not cognizable in federal habeas
corpus); Green v. Koerner, 312 Fed. App’x 105, 108 (10th
Cir. 2009) (holding that a prisoner’s claim that the state court
lacked a factual basis to support a no contest plea did not, by
itself, present a basis to invalidate her plea in a federal habeas
corpus action); Foote v. Ward, 207 Fed. App’x 927, 930 (10th
Cir. 2006) (holding that only if the defendant claims
innocence does he obtain the added protection of Alford);
Kirk v. Cline, No. 09-3187-WEB, 2011 WL 5597362, at *8
(D. Kan. Nov. 17, 2011) (collecting cases and noting that the
“due process clause does not require more of a factual basis
or other more stringent standards for a no contest plea than a
guilty plea”); see also Post v. Bradshaw, 621 F.3d 406,
426–27 (6th Cir. 2010) (noting that failure to find a factual
basis for a no contest plea would be a violation only of state
law, not cognizable in habeas), cert. denied, 131 S. Ct. 2902
(2011). It is therefore unnecessary to decide whether the state
appellate court unreasonably determined that the record
supplied an adequate factual basis for Loftis’s plea.

    Our cases have not endorsed the proposition that a factual
basis is required for a no contest plea even when considering
claims raised under Rule 11 on direct appeal. See United
States v. Mancinas-Flores, 588 F.3d 677, 681 (9th Cir. 2009)
(“The factual basis requirement does not apply to nolo pleas.
See Fed. R. Crim. P. 11(b)(3). This is so because a defendant
pleading nolo contendere takes no position on whether he
committed the elements of the offense, and the court
therefore has no reason to examine whether, in fact, he did.”);
see also Alford, 400 U.S. at 36 n.8 (noting that while a court
may not under Rule 11 accept a guilty plea absent a factual
basis, “there is no similar requirement for pleas of nolo
contendere, since it was thought desirable to permit
10                   LOFTIS V . ALMAGER

defendants to plead nolo without making any inquiry into
their actual guilt”). No one suggests that Rule 11(b)(3),
which requires a factual basis for guilty pleas – but not no
contest pleas – is unconstitutional.

    Judges Tashima and Silverman contend that Loftis’s
citation to People v. West, 477 P.2d 409 (1970) in connection
with his no contest plea was sufficient to trigger Alford’s
factual basis requirement. It is true that we have previously
said in dicta that West “is the California equivalent of an
Alford plea.” Doe v. Woodford, 508 F.3d 563, 566 (9th Cir.
2007); see also Roe v. Flores-Ortega, 528 U.S. 470, 473
(2000) (“The plea was entered pursuant to a California rule
permitting a defendant both to deny committing a crime and
to admit that there is sufficient evidence to convict him. See
People v. West, 3 Cal. 3d 595, 477 P.2d 409 (1970).”).
However, the defendant in Doe pleaded guilty, 508 F.3d at
565, rather than no contest, and his primary complaint was
that his plea was involuntary because he lacked sufficient
time to decide, id. at 569–72. We did not discuss the
sufficiency of the factual basis or any protestations of
innocence.

    In the present case, Loftis entered a plea of no contest not
a traditional Alford plea (i.e, a plea of guilty by one who
continues to claim innocence). See Mancinas-Flores,
588 F.3d at 681 (“An Alford plea differs from a nolo plea in
that a defendant pleading nolo contendere takes no position
on guilt or innocence, whereas a defendant entering an Alford
plea takes the position that he is not guilty.”); Stephanos
Bibas, Harmonizing Substantive-Criminal-Law Values and
Criminal Procedure: the Case of Alford and Nolo Contendere
Pleas, 88 Cornell L. Rev. 1361, 1373 (2003) (“[D]efendants
who plead nolo contendere simply refuse to admit guilt, while
                     LOFTIS V . ALMAGER                      11

defendants making Alford pleas affirmatively protest their
innocence.”). As Judge Tashima acknowledges, Alford
permits the court to accept a defendant’s nolo contendere plea
and treat him as if he were guilty, without inquiry into his
actual guilt. See 400 U.S. at 36 & n.8.

    Analysis of Alford, West and California and Ninth Circuit
cases makes clear that the citation to West during Loftis’s
plea colloquy did not transform Loftis’s no contest plea into
an Alford plea. The issue before the Supreme Court in Alford
was whether a guilty plea from a person who claimed
innocence should be accepted. The Court noted its previous
decisions holding that trial courts “may impose a prison
sentence after accepting a plea of nolo contendere, a plea by
which a defendant does not expressly admit his guilt, but
nonetheless waives his right to a trial and authorizes the court
for purposes of the case to treat him as if he were guilty.”
400 U.S. at 35. The Court stated that:

       These cases would be directly in point if
       Alford had simply insisted on his plea but
       refused to admit the crime. The fact that his
       plea was denominated a plea of guilty rather
       than a plea of nolo contendere is of no
       constitutional significance with respect to the
       issue now before us, for the Constitution is
       concerned with the practical consequences,
       not the formal categorizations, of state law.
       Thus, while most pleas of guilty consist of
       both a waiver of trial and an express
       admission of guilt, the latter element is not a
       constitutional requisite to the imposition of
       criminal penalty. An individual accused of
       crime may voluntarily, knowingly, and
12                LOFTIS V . ALMAGER

     understandingly consent to the imposition of
     a prison sentence even if he is unwilling or
     unable to admit his participation in the acts
     constituting the crime.

     Nor can we perceive any material difference
     between a plea that refuses to admit
     commission of the criminal act and a plea
     containing a protestation of innocence when,
     as in the instant case, a defendant intelligently
     concludes that his interests require entry of a
     guilty plea and the record before the judge
     contains strong evidence of actual guilt. Here
     the State had a strong case of first-degree
     murder against Alford. Whether he realized
     or disbelieved his guilt, he insisted on his plea
     because in his view he had absolutely nothing
     to gain by a trial and much to gain by
     pleading. Because of the overwhelming
     evidence against him, a trial was precisely
     what neither Alford nor his attorney desired.
     Confronted with the choice between a trial for
     first-degree murder, on the one hand, and a
     plea of guilty to second-degree murder, on the
     other, Alford quite reasonably chose the latter
     and thereby limited the maximum penalty to
     a 30-year term. When his plea is viewed in
     light of the evidence against him, which
     substantially negated his claim of innocence
     and which further provided a means by which
     the judge could test whether the plea was
     being intelligently entered, its validity cannot
     be seriously questioned. In view of the strong
     factual basis for the plea demonstrated by the
                     LOFTIS V . ALMAGER                        13

        State and Alford’s clearly expressed desire to
        enter it despite his professed belief in his
        innocence, we hold that the trial judge did not
        commit constitutional error in accepting it.

Id. at 37–38 (internal citations and footnote omitted).

    While Alford did not explicitly hold that a factual basis
was constitutionally necessary, lower federal courts have
drawn from the above language the requirement that if a
defendant pleads guilty while claiming innocence the trial
court must find a factual basis. See, e.g., Willet, 608 F.2d at
540. But cf. Higgason, 984 F.2d at 207 (“Alford tells us that
strong evidence on the record can show that a plea is
voluntary; it does not hold that only strong evidence on the
record permits a finding of voluntariness. And it certainly
does not imply that the factual-basis requirement of Fed. R.
Crim. P. 11(f) and its state-law counterparts comes from the
Constitution.”). This requirement is based on the concern
that a defendant who pleads guilty while simultaneously
claiming innocence may not be acting freely and voluntarily.
See Willet, 608 F.2d at 540 (noting the “‘importance of
protecting the innocent and of insuring that guilty pleas are a
product of free and intelligent choice’”) (quoting Alford,
400 U.S. at 38 n.10). By finding a factual basis, the trial
judge resolves the conflict between the waiver of trial and the
claim of innocence. See id. When a defendant pleads guilty
or no contest without claiming innocence or otherwise
making statements calling into question the voluntariness of
his plea, however, there is no such conflict for the trial judge
to resolve, and the finding of a factual basis is not essential to
voluntariness. In the present case, Loftis made no statements
triggering the concerns raised in Alford.
14                      LOFTIS V . ALMAGER

    Nor can a bare reference to People v. West, such as
occurred during the plea colloquy here, carry with it an
implied assertion of innocence, activating the additional
protections of Alford. “West did not actually involve a claim
of innocence but addressed the validity of a plea to an
uncharged lesser offense entered pursuant to a plea bargain.”
People v. Rauen, 133 Cal. Rptr. 3d 732, 734 n.1 (Cal. App.
2011);1 see also In re Alvernaz, 830 P.2d 747, 752 (Cal.
1992) (characterizing a West plea as “a plea of nolo
contendere, not admitting a factual basis for the plea”). West
approved the practice of plea bargaining to a lesser charge in
order to avoid exposure to greater penalties. In this sense,
West resembles Alford because the motive in Alford was also
to avoid more serious penalties. But West’s focus was on
validating the practice of plea bargaining generally. The
decision relied in part on Brady v. United States, 397 U.S.
742 (1970), in which the Supreme Court approved a plea to
a lesser charge motivated by the desire to avoid a higher
penalty, but West never even mentioned Alford, which had
come down a few weeks previous. Thus, West is more an
analog of Brady than of Alford.

    While some California cases casually refer to West and
Alford pleas interchangeably, others draw a distinction. See,


   1
     Judge T ashima notes that Rauen also said a West plea “allows a
defendant to plead guilty in order to take advantage of a plea bargain
while still asserting his or her innocence.” Id. at 734. That a West plea
allows a defendant to plead guilty while asserting innocence does not
change the fact that Loftis pleaded no contest without ever making such
an assertion. Further, as Alford noted, the Constitution is concerned with
the practical consequences of the defendant’s plea, not the manner in
which it may be formally categorized under state law. 400 U.S. at 37. In
other words, we should focus on whether Loftis’s plea raised the concerns
identified in Alford not the label California courts might place upon it.
                    LOFTIS V . ALMAGER                      15

e.g., In re Mills, No. C066648, 2011 WL 4005394, at *4 (Cal.
App. 3 Dist. Sept. 9, 2011) (“The superior court correctly
found Mills entered his plea on the mistaken belief that a
West plea allowed him to maintain his innocence; West did
not involve a claim of innocence but instead addressed the
validity of a plea to an uncharged lesser offense entered
pursuant to a plea bargain.”); People v. Wampler, No.
C060649, 2010 WL 1435040, at *2 n.2 (Cal. App. 3 Dist.
Apr. 12, 2010) (noting that while pleas in which the
defendant continues to maintain innocence are sometimes
referred to as West pleas, they are really Alford pleas). Judge
Tashima correctly notes that these decisions are non-
precedential. They do, however, indicate that California law
does not clearly equate West and Alford such that as a federal
habeas court we should extend the additional protections of
Alford to any case in which West is mentioned during the plea
colloquy. In any event, as discussed in note 1 above, the
validity of a plea under the Constitution does not turn on how
it is formally categorized under state law. Alford, 400 U.S. at
37. Thus, it is also irrelevant that under California law nolo
pleas are treated like guilty pleas. See Cal. Penal Code
§ 1016(3).

    Judge Tashima argues that even if a West plea is not
equivalent to a claim of innocence, it at least qualifies as a
“special circumstance.” Rodriguez, 777 F.2d at 528.
However, the only special circumstance we identified in
Rodriguez was “a defendant’s specific protestation of
innocence, which might impose on a state court the
constitutional duty to make inquiry and to determine if there
is a factual basis for the plea.” Id. Similarly, Banks v.
McGougan, 717 F.2d 186, 188 (5th Cir.1983), the case upon
which Rodriguez primarily relied, spoke of a situation in
which “the state judge is put on notice that there may be some
16                  LOFTIS V . ALMAGER

need for such an inquiry (as, for example, when the accused
asserts his innocence).” We have found no case in which a
federal habeas court has extended the factual basis rule of
Alford to a situation such as in the present case where the
defendant pleaded no contest without asserting innocence or
making other statements about the facts which called the
validity of his plea into question.

    Finally, Judge Tashima contends that United States v.
Vidal, 504 F.3d 1072 (9th Cir. 2007), supports the proposition
that a defendant who pleads pursuant to People v. West
contests factual guilt. In Vidal, we considered on direct
appeal whether a defendant’s California conviction for
driving a stolen vehicle qualified as an aggravated felony,
supporting an 8-level sentencing guideline enhancement
under U.S.S.G. § 2L1.2(b)(1)(C). The defendant pled guilty
in exchange for the dismissal of another count, and the
description of the facts supporting the charge in his plea form
stated only “People v. West.” Id. at 1075. We held first that
because the California statute at issue also applied to
accessories after the fact it did not categorically describe a
“generic” theft offense. Id. at 1077–86. We then concluded
that under the modified categorical approach the record did
not permit a finding that the defendant pled guilty to generic
theft, as the plea form contained no factual basis permitting
such a finding. Id. at 1088–89. In so holding, we discussed
West pleas and noted that the “California Supreme Court
subsequently characterized a People v. West plea as a plea of
nolo contendere that does not establish factual guilt.” Id. at
1089. Thus, we said that “unless the record of the plea
proceeding reflects that the defendant admitted to facts, a
West plea, without more, does not establish the requisite
factual predicate to support a sentence enhancement.” Id.
                       LOFTIS V . ALMAGER                            17

     We did not hold in Vidal that West pleas are the same as
Alford pleas or that a factual basis is constitutionally required
for a valid West plea. We held only that without a factual
basis permitting a determination of whether the prior
conviction qualified as an aggravated felony, the sentencing
guideline enhancement could not be applied. Thus, Vidal
therefore cannot bear the weight Judge Tashima places upon
it.2

                      III. CONCLUSION

    Because Loftis did not enter an Alford plea, the state court
was under no obligation, under the federal Constitution, to
find a factual basis. Loftis provides no other reason to find
his plea unknowing or involuntary. Accordingly, he is not
entitled to habeas relief.

      AFFIRMED.


SILVERMAN, Circuit Judge, concurring in the result:

   Chief Judge Kozinski recently designated a separate
opinion of his, not as a dissent or a partial concurrence, but as
a “disagree[ment] with everyone.” Garfias-Rodriguez v.
Holder, — F.3d —, 2012 WL 5077137 (9th Cir. October 19,
2012). I chuckled at the time, but not any more. I now find
myself in the position of agreeing with the result reached by
Judge Adelman affirming the denial of a writ of habeas

  2
   United States v. Savage, 542 F.3d 959 (2d Cir. 2008), which Judge
Tashima also cites, is similarly distinguishable. In Savage, the court
declined to impose a sentence enhancement under the modified categorical
approach because the defendant’s Alford plea did not establish the
requisite facts.
18                   LOFTIS V . ALMAGER

corpus, but only with the result; agreeing with the portion of
Judge Tashima’s dissent demonstrating the constitutional
requirement of a factual basis to support a People v. West-
type no contest plea; but ultimately disagreeing with Judge
Tashima about whether there was, indeed, a factual basis in
this case for second degree murder under California law.

    I start with Judge Tashima. I agree with him that a factual
basis is required for an Alford plea or a no contest plea
entered pursuant to People v. West, 477 P.2d 409 (Cal. 1970),
California’s analogue to Alford. As Judge Tashima cogently
shows, a court taking a no contest or Alford-type plea must
satisfy itself that there is a factual basis to believe that the
defendant is, indeed, guilty of the crime for which he will be
convicted. A factual basis is constitutionally required
because of the importance of protecting the innocent and
assuring that the plea is the product of free and intelligent
choice. North Carolina v. Alford, 400 U.S. 25, 38 (1970).

     Here, the trial court failed to establish a factual basis at
the time it accepted Loftis’s no contest plea. That error gives
rise to the next question: Whether a reviewing court may look
to a pre-sentence report prepared by the probation department
to see whether the error was harmless – that is, to ascertain
whether the report contains facts that support the plea. The
answer to that question is yes, and Loftis does not argue
otherwise. See United States v. Mancinas-Flores, 588 F.3d
677, 681–83 (9th Cir. 2009); Carty v. Nelson, 426 F.3d 1064,
1074–75 (9th Cir. 2005). In any event, there are no clearly
established United States Supreme Court decisions to the
contrary.

   The final question is whether the facts set forth in the
probation report establish a factual basis for second degree
                         LOFTIS V . ALMAGER                         19

murder under California law. The answer to this question
begins and ends with the principle that the California courts
are the expositors of California law. The California courts
tell us what California law covers; we don’t tell them.
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have
repeatedly held that a state court’s interpretation of state law,
including one announced on direct appeal of the challenged
conviction, binds a federal court sitting in habeas corpus.”).
In this case, the California Court of Appeal reviewed the facts
set forth in the probation report and, analyzing California
cases and interpreting California law, concluded that those
facts would support a conviction of second-degree murder
under the California Penal Code.1


 1
     The Court of Appeal wrote:

               California law recognizes three theories of second
          degree murder, one of which is implied malice murder.
          (People v. Robertson (2004) 34 Cal. 4th 156, 164
          [malice is implied when the killing results from an
          intentional act, the natural consequences of which are
          dangerous to life, which act was deliberately performed
          by a person who knows that his conduct endangers the
          life of another and who acts with conscious disregard
          for life].)

               Here, the probation report contained facts
          supporting a finding that defendant knew the
          consequences of his failure to seek medical care for
          Celena placed her life in danger. He observed her
          adverse reaction and her continuing condition. He
          suggested taking her to the hospital and therefore
          recognized the seriousness of her situation. The facts
          also show defendant acted with conscious disregard for
          Celena’s life. He knew she was ill and did nothing to
          help her. The hospital was only a short distance from
          his house. He and his cohorts simply took Celena along
20                  LOFTIS V . ALMAGER



     in the vehicle when they headed to the Palace casino.
     W hen she quit breathing, defendant mentioned the
     hospital to his cohorts but he made no real effort to get
     her there. On the way to the casino, they stopped the
     vehicle, placed Celena’s body on the roadside and
     covered it with tumbleweeds. W hen they arrived at the
     casino, defendant played slot machines. In sum, while
     Celena was experiencing a violent reaction to the
     methamphetamine and was obviously ailing, even when
     she quit breathing, defendant consciously disregarded
     her life-threatening condition and deprived her of
     medical care, knowing he was placing her life in
     danger.

          “[T]he common law does not distinguish between
     homicide by act and homicide by omission.” (People
     v. Burden (1977) 72 Cal. App. 3d 603, 618; see also
     People v. Dellinger (1989) 49 Cal. 3d 1212, 1220.)
     Passive conduct or omissions may satisfy the actus reas
     component of murder where the person is under a duty
     to act. (See People v. Protopappas (1988) 201 Cal.
     App. 3d 152, 168 [doctor’s failure to assist his patient
     after inappropriately administering anesthesia]; People
     v. Burden, supra, at pp. 620–621 [father’s failure to
     feed his child].) Defendant owed Celena a duty to act.
     He created the substantial risk by selling her the
     methamphetamine. He observed her serious reaction to
     the drug and knew she was still sick when she entered
     the vehicle. Once she was in the vehicle with defendant
     and the others, she had no other access to help. At that
     point, she was entirely dependent on defendant and the
     others for assistance. W e believe these circumstances,
     which placed Celena in grave peril, resulted in a duty
     on defendant’s part to act. (See, e.g., Health & Saf.
     Code § 11704, subd. (1) [drug dealer liability; person
     who knowingly participates in marketing of illegal
     controlled substances is liable for civil damages; person
     may recover damages for injury resulting from an
     individual’s use of illegal controlled substance];
                       LOFTIS V . ALMAGER                          21

    That is the end of the matter. Alford requires that the
record contain a factual basis for the plea, not proof beyond
a reasonable doubt. United States v. Neel, 547 F.2d 95, 96
(9th Cir. 1976) (per curiam).

   For these reasons, I concur in affirming the district court’s
denial of habeas relief.


TASHIMA, Circuit Judge, dissenting:

    I respectfully dissent. Derrick Loftis committed a
despicable act when he sold drugs to a young girl. But that
act, plus the fact that the girl later died in his presence, is
insufficient to support a murder conviction. Given the nature
of Loftis’ plea, the stark disconnect between the facts and the
plea raises a substantial constitutional issue. Loftis’ West
plea was tantamount to a claim of innocence, and the trial
court thus violated clearly established federal law when it
failed to identify any factual basis for the plea. This error had
a substantial and injurious effect on the proceedings because
nothing in the record suggests that Loftis acted with



        Williams v. State of California (1983) 34 Cal. 3d 18, 23
        [no affirmative duty to act absent special relationship
        unless actor has created a situation of peril increasing
        risk of harm]; McGettigan v. Bay Area Rapid Transit
        Dist. (1997) 57 Cal. App. 4th 1011, 1021–1022 [same];
        Rest.2d Torts §314A, comment d. [duty to protect
        person against unreasonable risk of harm extends to
        risks arising out of the actor’s own conduct].)

People v. Loftis, 2007 WL 1248492 at *5–6 (footnote citing to
CALCRIM No. 520 and CALJIC No. 8.31 omitted).
22                        LOFTIS V . ALMAGER

knowledge that he was endangering human life. I would,
thus, grant Loftis’ habeas petition.

                                     I

    According to the state court probation report,1 Loftis
admitted to police that he sold crystal meth to fifteen-year-old
Celena V., and that after she consumed the crystal meth she
“began to get ‘crazy’ by freaking out, getting hot and
shaking.” Richard Banuelos gave Celena some milk. Celena
did not improve, but Loftis, Banuelos, Leslie Saiz, and
Celena headed to a casino. On the way there, Loftis noticed
that Celena was not breathing, attempted to wake her up by
shaking her, and told the others that he wanted to take her to
a hospital, to which Saiz responded that she was already
dead. Saiz and Banuelos then took her body out of the car
and covered it with tumbleweeds. Loftis, Banuelos, and Saiz
continued on to the casino. Celena’s body was discovered
about a month later.

    Loftis was charged with murder, and eventually entered
a plea of no contest to second-degree murder. There was no
written plea agreement, Loftis did not complete a written plea
form, and the parties never stipulated to a factual basis for the
plea. When the court asked the parties to supply a factual
basis for the plea at the plea colloquy, Loftis’ attorney stated
that Loftis was pleading “pursuant to People versus West.”2


 1
   This report, of course, was not before the court at the plea-taking. But
consistent with the state appellate court’s reliance on it and the majority’s
reliance on it, by reference, see Maj. op. at 4–5, I refer to it as the most
complete recounting of the facts in this case.

  2
      People v. West, 477 P.2d 409 (Cal. 1970).
                       LOFTIS V . ALMAGER                           23

   Loftis’ conviction was affirmed on appeal, and the district
court denied his federal habeas petition.

                                  II

                                  A

    When a defendant pleads guilty, he waives “[s]everal
federal constitutional rights,” including “the privilege against
compulsory self-incrimination[,] . . . the right to trial by jury[,
and] . . . the right to confront one’s accusers.” Boykin v.
Alabama, 395 U.S. 238, 243 (1969). A waiver of these rights
must be voluntary and intelligent. Id. at 242–43; see also
Brady v. United States, 397 U.S. 742, 748 (1970). “Central
to the plea and the foundation for entering judgment against
the defendant is the defendant’s admission in open court that
he committed the acts charged in the indictment.” Id.

    In North Carolina v. Alford, 400 U.S. 25 (1970), the
Supreme Court held that a guilty plea accompanied by
protestations of innocence may be accepted only if the judge
“test[s] whether the plea was being intelligently entered” by
ensuring that there is a factual basis for the pled charge. Id.
at 38. Alford had been indicted for first-degree murder and
pled guilty to second-degree murder. Id. at 26–27. At the
plea hearing, he testified that he did not commit the murder
but was pleading guilty to avoid the threat of the death
penalty.3 Id. at 28. Before the court accepted the guilty plea,
a police officer summarized the state’s case, and two other
witnesses testified that “shortly before the killing Alford took
his gun from his house, stated his intention to kill the victim,

  3
    Similarly, Loftis’ plea was based on “avoid[ing] the possibility of
being convicted of first degree murder.” Maj. op. at 6.
24                  LOFTIS V . ALMAGER

and returned home with the declaration that he had carried out
the killing.” Id. On appeal, Alford argued that his plea was
invalid because it was the product of fear and coercion. Id. at
29.

    The Court explained that Alford’s protestation of
innocence presented a potential problem, because
“[o]rdinarily, a judgment of conviction resting on a plea of
guilty is justified by the defendant’s admission that he
committed the crime charged against him and his consent that
judgment be entered.” Id. at 32. When Alford asserted that
he was innocent, he created “a factual and legal dispute
between him and the State” as to his guilt. Id. This was
problematic because the admission of guilt is “normally
‘central to the plea and the foundation for entering
judgment.’” Id. (quoting Brady, 397 U.S. at 738) (internal
alterations omitted). “Without more, it might be argued that
the conviction . . . was invalid, since his assertion of
innocence negatived any admission of guilt . . . .” Id.
(emphasis added).

    The “more” that made Alford’s guilty plea valid was that
when the plea was “viewed in light of the evidence against
him, which substantially negated his claim of innocence and
which further provided a means by which the judge could test
whether the plea was being intelligently entered, its validity
cannot be seriously questioned.” 400 U.S. at 37-38 (citing
McCarthy v. United States, 394 U.S. 459, 466-67 (1969)).
The cited portion of McCarthy explains that Federal Rule of
Criminal Procedure 11, which requires the court to determine
that there is a factual basis for a guilty plea before entering
judgment, “is designed to protect a defendant who is in the
position of pleading voluntarily with an understanding of the
nature of the charge but without realizing that his conduct
                     LOFTIS V . ALMAGER                      25

does not actually fall within the charge.” McCarthy, 394 U.S.
at 467 (internal quotation marks omitted). Therefore, when
a defendant pleads guilty, but protests his innocence, the trial
court ensures that the plea is intelligent by determining that
there is a factual basis for the plea. Alford, 400 U.S. at 38;
see also United States v. King, 257 F.3d 1013, 1022 (9th Cir.
2001); United States v. Neel, 547 F.2d 95, 96 (9th Cir. 1976).

                               B

    Loftis pled no contest under California law and cited
People v. West. This plea was sufficient to trigger the factual
basis requirement under Alford.

                               1

    The United States Supreme Court, the Ninth Circuit, and
the California Supreme Court all interpret a plea pursuant to
People v. West to mean that the defendant does not admit
factual guilt but pleads to avoid a more serious punishment.
See Roe v. Flores-Ortega, 528 U.S. 470, 473 (2000) (noting
in dicta that a People v. West plea “permit[s] a defendant both
to deny committing a crime and to admit that there is
sufficient evidence to convict him”); Doe v. Woodford,
508 F.3d 563, 566 n.2 (9th Cir 2007) (noting that a People v.
West plea “does not require an admission of guilt and is the
California equivalent of an Alford plea”); In re Alvernaz, 830
P.2d 747, 752 (Cal. 1992) (describing a People v. West plea
as a “plea of nolo contendere, not admitting a factual basis for
the plea”).

    Our holding in United States v. Vidal, 504 F.3d 1072 (9th
Cir. 2007) (en banc), is dependent on the premise that a
defendant does not admit factual guilt when he pleads guilty
26                     LOFTIS V . ALMAGER

pursuant to People v. West. In that case, the defendant pled
guilty to a crime, and was subject to a sentencing
enhancement for a prior offense. Id. at 1074–75. For that
prior offense, the defendant had pled guilty pursuant to
People v. West and no recitation of the factual basis for
defendant’s plea appeared on the written plea and waiver of
rights form. Id. at 1075. Instead, as in this case, “only
‘People v. West’ [wa]s entered in the section that requests a
description of facts supporting any charges.” Id. The en banc
court held that the record for the prior offense “fails to
establish the factual predicate for [the defendant]’s plea of
guilty pursuant to People v. West.” Id. at 1087. This is
because “unless the record of the plea proceeding reflects that
the defendant admitted to facts, a West plea, without more,
does not establish the requisite factual predicate to support a
sentence enhancement.” Id. at 1089.

     These precedents establish that, when a defendant pleads
guilty in California state court pursuant to People v. West, the
trial court must ensure that the defendant’s plea is intelligent
by ensuring that there is a factual basis for the plea.
Moreover, the California precedent cited by Judge Adelman
is not to the contrary. For example, People v. Rauen correctly
noted that “West did not actually involve a claim of
innocence,” 133 Cal. Rptr. 3d 732, 734 n.1 (Ct. App. 2011).
But more importantly, that court also stated that a West plea,
“also referred to as an Alford plea, based on North Carolina
v. Alford, allows a defendant to plead guilty in order to take
advantage of a plea bargain while still asserting his or her
innocence.” Id. at 734 (citation omitted).4


  4
     Similarly, although the two unpublished decisions cited in Judge
Adelman’s opinion mention that West pleas are not identical to Alford
pleas because they do not involve claims of innocence, neither decision
                        LOFTIS V . ALMAGER                             27

    Judge Adelman also stresses that the defendant in West
did not explicitly proclaim innocence, and thus concludes that
a West plea is distinguishable from an Alford plea. Nothing
in Alford, however, requires an express protestation of
innocence. Indeed, the Ninth Circuit has not limited the
Alford rule to pleas accompanied by claims of innocence, but
instead has held that “the due process clause does not impose
on a state court the duty to establish a factual basis for a
guilty plea absent special circumstances.” Rodriguez v.
Ricketts, 777 F.2d 527, 528 (9th Cir. 1985) (per curiam).5
Given the uniformity of published authority equating West
and Alford pleas, it is clear that, even if a West plea were not




holds that a West plea does not trigger Alford’s factual inquiry
requirement. See In re Mills, 2011 W L 4005394, at *4 (Cal. Ct. App.
2011); People v. Wampler, 2010 W L 1435040, at *2 n.2 (Cal. Ct. App.
2010). Moreover, these decisions cannot inform our analysis of California
law because unpublished decisions of the California intermediate appellate
courts are not precedential – they cannot be relied on as authoritative
pronouncements of California law. See Cal. Rule of Court 8.1115 (“an
opinion of a California Court of Appeal . . . that is not certified for
publication . . . must not be cited or relied on by a court or party in any
other action”).

 5
   United States v. Mancinas-Flores, 588 F.3d 677 (9th Cir. 2009), cited
by Judge Adelman, is of little relevance. Mancinas-Flores was a direct
criminal appeal in which the defendant argued a violation of Fed. R. Crim.
P. 11; it was not a habeas case brought by a state prisoner raising
constitutional issues. Further, Mancinas-Flores’ citation to the Advisory
Committee’s 1966 note is out of date. Alford was not decided until four
years later, in 1970. Thus, the Advisory Committee’s 1974 note, citing
Alford, recognizes that “[a] plea of nolo contendere is, for purposes of
punishment, the same as the plea of guilty.” Fed. R. Crim. P. 11, advisory
committee note (1974).
28                      LOFTIS V . ALMAGER

equivalent to a claim of innocence, it at least qualifies as such
a “special circumstance.”6

                                    2

    The fact that Loftis pled no contest rather than guilty does
not alter the outcome. As explained above, Alford requires
the trial judge to ensure that there is a factual basis for a
guilty plea when a defendant protests his innocence because
the protest undermines the “express admission of guilt” that
is “normally central to the plea and the foundation for
entering judgment.” 400 U.S. at 32, 37. By contrast, the
Court explained that if Alford had entered a nolo contendere
plea, which “has been viewed not as an express admission of
guilt but as a consent by the defendant that he may be
punished as if he were guilty,” the Court could simply treat
him as if he were guilty. Id. at 36 & n.8, 37; see also id. at 37
(equating “a plea that refuses to admit commission of the
criminal act” with a guilty plea accompanied by both a
protestation of innocence and “strong evidence of factual
guilt”). Therefore, when a defendant enters a plea that
ordinarily includes an admission of guilt and simultaneously


  6
    The Second and Fifth Circuits have also recognized that a claim of
innocence is not a pre-requisite to the application of Alford. Thus, the
Second Circuit has noted that “[t]he distinguishing feature of an Alford
plea is that the defendant does not confirm the factual basis of the plea.”
United States v. Savage, 542 F.3d 959, 962 (2d Cir. 2008). And in Banks
v. McGougan, 717 F.2d 186, 188 (5th Cir. 1983), the Fifth Circuit agreed
with the holdings from five other circuits that “absent statements
inconsistent with guilt, state courts are not constitutionally required to
establish a factual basis for the plea of guilt.” The Banks court then held
that inquiry is required where the state judge “is put on notice that there
may be some need for such an inquiry.” Id. None of these formulations
of the Alford rule requires an express claim of innocence.
                    LOFTIS V . ALMAGER                      29

protests his innocence, the trial court may accept the plea
only if it determines that there is a factual basis for the
charge.

     Loftis’ no contest plea under People v. West was unlike
the classic nolo contendere plea discussed in Alford because
in California a nolo contendere plea “admits every element of
the crime charged and is the legal equivalent of a verdict and
is tantamount to a finding.” People v. Wallace, 93 P.3d 1037,
1043 (Cal. 2004) (internal quotation marks and citations
omitted). In California, a nolo contendere plea is the same as
a guilty plea “for all purposes,” and “upon a plea of nolo
contendere, the court shall find the defendant guilty.” Cal.
Penal Code § 1016(3). When a defendant enters a nolo
contendere plea, the court is required by state law to
“ascertain whether the defendant completely understands that
a plea of nolo contendere shall be considered the same as a
plea of guilty.” Id.

    “[T]he Constitution is concerned with the practical
consequences, not the formal categorizations, of state law.”
Alford, 400 U.S. at 37. In California, the practical
consequences of a nolo contendere plea are identical to the
practical consequences of a guilty plea. Because an ordinary
California nolo contendere plea admits a factual basis for the
plea, for Alford purposes it is the same as a guilty plea. But,
by adding a citation to People v. West to either plea, a
defendant creates a “dispute between him and the State.” Id.
30                      LOFTIS V . ALMAGER

at 32.7 Otherwise, the defendant’s express reference to
People v. West when entering his plea becomes meaningless.

    In sum, when a defendant enters a plea which, although
admitting factual guilt, simultaneously protests his innocence,
the trial court must ensure that the plea is intelligent by
determining that there is a factual basis for the plea,
regardless of the nomenclature. Loftis entered a plea which
admits factual guilt, but simultaneously protested his
innocence by citing People v. West. The trial court violated
clearly established law under Alford when, under these
circumstances, it failed to determine the existence of a factual
basis for Loftis’ plea.

                                   III

                                   A

    The California Court of Appeal assumed that the trial
court committed error, but determined that the error was
harmless. Even when a state court determines that an error is
harmless beyond a reasonable doubt, which the state court did
not do in this case, this Court “need not conduct an analysis
under AEDPA of whether the state court’s harmlessness
determination on direct review . . . was contrary to or an
unreasonable application of clearly established federal law.”
Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010)



 7
    Judge Adelman’s reliance on unpublished out-of-circuit decisions, see
Maj. op. at 8–9, is also unavailing (even assuming that such decisions
should be given any weight) because the nolo contendere pleas involved
in those cases were not the same as and, thus, did not have the same legal
significance as a West plea.
                          LOFTIS V . ALMAGER                                31

(citing Fry v. Pliler, 551 U.S. 112, 119-20 (2007)); see also
Merolillo v. Yates, 663 F.3d 444, 454-55 (9th Cir. 2011).

    Instead, when evaluating a constitutional error in a plea-
taking on habeas, we ask “whether the state court’s error . . .
had a ‘substantial and injurious effect’ on [petitioner].”
Buckley, 441 F.3d at 697 (quoting Brecht v. Abramson,
507 U.S. 619, 637 (1993)). When a trial court fails to ensure
a factual basis for an Alford plea on direct appeal we ask
whether there is “[s]ufficient evidence indicating guilt” and
“need not convince [ourselves] of guilt beyond a reasonable
doubt.” King, 257 F.3d at 1022; see also Neel, 547 F.2d at
96. Accordingly, if there is insufficient evidence indicating
Loftis’ guilt, the failure to establish a factual basis for his plea
had a substantial and injurious effect on him. See Buckley,
441 F.3d at 698 (holding that the error had a “substantial and
injurious effect” on petitioner because it caused him to
receive a longer sentence).8



  8
    Judge Silverman argues that we must defer to the California Court of
Appeal’s harmless error analysis. This is contrary to the rule, however,
that “we apply the Brecht test without regard for the state court’s
harmlessness determination.” Pulido, 629 F.3d at 1012. This principle
applies even where the harmlessness determination involves, as is often
the case, the application of state law. See, e.g., Lawson v. Borg, 60 F.3d
608, 612 (9th Cir. 1995) (addressing de novo whether the jury’s
consideration of extrinsic evidence bearing on intent to commit robbery
was harmless). As Judge Silverman recognizes, we defer to state court
interpretations of state law, but, in this case, there is no such interpretation
of state law to defer to. The harmlessness question is simply whether
there is sufficient evidence in the record to support a second-degree
murder conviction. Compare Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
(per curiam) (holding that a federal habeas court must defer to a state-
court interpretation of the transferred intent doctrine as applied to a state
murder statute).
32                   LOFTIS V . ALMAGER

                               B

     In California, second-degree “[m]urder is the unlawful
killing of a human being . . . with malice aforethought.” Cal.
Penal Code § 187. There are three types of second degree
murder: (1) “unpremeditated murder with express malice,”
(2) “implied malice murder,” and (3) “second degree felony
murder.” People v. Swain, 909 P.2d 994, 998 (Cal. 1996).
The first type clearly does not apply in this case. As I explain
below, there is insufficient evidence supporting a second-
degree murder conviction under either an implied malice or
a felony murder theory.

                               1

    “[A] killer acts with implied malice only when acting
with an awareness of endangering human life.” People v.
Knoller, 158 P.3d 731, 739 (Cal. 2007). In Knoller, the
California Supreme Court reversed an intermediate appellate
court which had held that a theory of implied malice “can be
based simply on a defendant’s awareness of the risk of
causing serious bodily injury to another.” Id. at 732; see also
People v. Phillips, 414 P.2d 353, 363 (Cal. 1966) (approving
second-degree murder instruction that the killing must result
from the defendant’s act, “the natural consequences of which
are dangerous to life, which act is deliberately performed by
a person who knows that his conduct endangers the life of
another”) (emphases added), overruled on other grounds by
People v. Flood, 957 P.2d 869, 882 (Cal. 1998).

    Under these standards, the trial court did not have a
sufficient factual basis to conclude that Loftis was aware that
his actions endangered Celena’s life. Assuming, without
deciding, that this Court can rely on the probation report that
                     LOFTIS V . ALMAGER                      33

was produced after the plea colloquy, nothing in the probation
report supports a finding of guilt. According to the probation
report, after Celena ingested the crystal meth, she began to
get “‘crazy,’ by freaking out, getting hot and shaking.” There
is absolutely no indication that Loftis knew at that point that
Celena’s life was in danger. Later, in the car, Loftis “told the
others he wanted to take her to the hospital,” but “Saiz said
no, that she was gone (dead).” Thus, once Loftis
demonstrated an awareness that Celena’s life was in danger
he believed that he could no longer take any action to save
her life because she was already dead. The fact that Loftis
wanted to take Celena to the hospital when he realized the
severity of her condition suggests that he had not recognized
that her life was in danger when she was ill earlier in the
evening. See People v. Whisenhunt, 186 P.3d 496, 527 (Cal.
2008) (holding that there was no substantial evidence to
support a theory of implied malice murder in a case in which
testimony indicated that the defendant was initially “vaguely
concerned about [the victim]’s condition,” and “did not
become seriously concerned about [the victim]’s condition
until several hours later . . . at which point . . . he
immediately” sought medical help).

                               2

    The State does not argue that the facts in this case support
an implied malice theory of second-degree murder. Instead,
the State argues that the probation report supports a theory
under which the actus reus of the murder was Loftis’ failure
to act after providing Celena with drugs. The State does not
explain how this theory maps onto any of California’s three
types of second-degree murder. See Swain, 909 P.2d at 998.
And the State does not cite any statute or case supporting its
34                        LOFTIS V . ALMAGER

contention that this theory is sufficient for a second-degree
murder conviction.9

     The State’s argument is closest to arguing that there is a
sufficient factual basis for second-degree felony murder. But
in order to be convicted based on second-degree felony
murder, the defendant had to commit an “inherently
dangerous felony,” which is “an offense carrying a high
probability that death will result.” People v. Patterson, 778
P.2d 549, 553, 558 (Cal. 1989) (internal quotation marks
omitted). “In determining whether a felony is inherently
dangerous, the court looks to the elements of the felony in the
abstract, not the particular facts of the case, i.e., not to the
defendant’s specific conduct.” People v. Hansen, 885 P.2d
1022, 1026 (Cal. 1994) (internal quotation marks omitted),
overruled on other grounds by People v. Sarun Chun, 203
P.3d 425, 442 (Cal. 2009). The State has not cited, and we
are not aware of, any California case which has held that
furnishing crystal meth, or any other felony for which there
is a factual basis in this case, is inherently dangerous for the
purpose of the second degree felony murder rule. Compare,
e.g., People v. James, 74 Cal. Rptr. 2d 7, 23 (Ct. App. 1998)
(manufacturing meth is an inherently dangerous felony). Nor
does the State argue that this Court should establish that
furnishing crystal meth is an inherently dangerous felony.
Accordingly, the State’s alternate theory fails.




  9
    Even assuming that, as the state court found, Loftis could have been
convicted based on an omission – which requires an underlying duty to act
– there is still nothing in the record to indicate that Loftis failed to act and
knew that his failure endangered Celena’s life.
                        LOFTIS V . ALMAGER                            35

                                  IV

    Because I conclude that there is insufficient evidence
indicating Loftis’ guilt, the trial court’s failure to establish a
factual basis for his plea had a substantial and injurious
effect.10 I would therefore reverse the district court’s
judgment denying the petition for writ of habeas corpus and
remand with directions to issue a conditional writ releasing
Loftis from custody, unless, within a reasonable period of
time, the State recommences proceedings against Loftis. I
respectfully dissent.




  10
      Loftis also separately claims that his plea was not intelligent and
voluntary. I would dismiss as unexhausted any claim that his plea was not
intelligent and voluntary that is not based on his Alford argument.
