                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 07 2015

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



                            FOR THE NINTH CIRCUIT


JOSEPH P. SHELTON,                               No. 13-15707

              Petitioner,                        D.C. No. 4:10-cv-01100-PJH

 v.
                                                 MEMORANDUM*
JOHN C. MARSHALL and ATTORNEY
GENERAL OF THE STATE OF
CALIFORNIA,

              Respondents - Appellees.


                  Appeal from the United States District Court
                       for the Northern District of California
                Phyllis J. Hamilton, Chief District Judge, Presiding

                            Argued November 20, 2014
                            Submitted August 7, 2015
                             San Francisco, California

Before: THOMAS, Chief Judge and REINHARDT and CHRISTEN, Circuit
Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      In an opinion filed concurrently with this disposition, we order the writ

granted with respect to Joseph Shelton’s conviction for the first-degree murder of

Kevin Thorpe on the ground that the suppressed evidence regarding Norman

Thomas was material to that conviction. We hold here, however, that the evidence

of the prosecution’s secret deal with Thomas was not material with respect to

Shelton’s convictions for the second-degree murder of Laura Craig, kidnapping, or

theft. There is no reasonable probability that had Thomas’s testimony been omitted

or had Thomas been impeached by evidence of his secret deal with the prosecution,

the result of the proceedings would have been different with respect to those

counts. See Kyles v. Whitley, 514 U.S. 419, 434 (1995).

      1.     Kidnapping convictions. There was overwhelming evidence in the

record apart from Thomas’s testimony of Shelton’s intentional participation in the

kidnapping of both Thorpe and Craig. Thomas’s testimony differed from Shelton’s

with respect to what was said in the truck before the kidnapping took place, but

Shelton himself testified that he drove the truck to his property behind the hijacked

victims’ car; that he drove the victims to his cabin; and that he stayed with them

while Thomas and Silva were absent.

      Although Thomas’s testimony contradicted Shelton’s trial testimony that he

was intoxicated during the kidnappings, there was not a reasonable probability that

                                          2
had Thomas been impeached by the evidence of the secret deal, the jury would

have accepted an intoxication defense to the kidnappings. Shelton himself testified

that the drugs he was on the night of the kidnapping would not “mess you up . . . to

the point of not knowing what’s going on.”

      Nor was there a reasonable probability that, had Thomas been totally

impeached, the jury would have accepted a coercion defense to the kidnappings.

This defense required a threat of immediate, rather than future, danger to one’s life.

People v. Martin, 108 P. 1034, 1037 (Cal. Ct. App. 1910). Shelton had an

opportunity to leave when he drove the truck behind the victims’ car as well as

later that evening when Silva and Thomas left him alone in the cabin with Craig.

Shelton testified that he did not try to leave because he feared that Silva would kill

him and his family, but this was a threat of future—not immediate— danger.

      2.     Second-degree murder. With respect to the second-degree murder of

Craig, the jury instruction correctly stated the applicable law: “the unlawful killing

of a human being, whether intentional, unintentional, or accidental, which occurs

as a direct causal result of the commission of or attempt to commit . . . the crime of

simple kidnapping and where there was in the mind of the perpetrator the specific

intent to commit such crime, is murder of the second degree,” including where the

murder is committed by a coconspirator in the kidnapping. As explained above, the

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prosecution’s secret deal with Thomas was not material with respect to Shelton’s

conviction for the kidnapping of Craig. Shelton’s testimony that he and Silva were

taking the kidnapping victim to meet the head of the Hell’s Angels when Silva shot

her is sufficient to meet the “direct causal result of a kidnapping” provision.

Moreover, Thomas’s testimony regarding the shooting of Craig by Silva, as

Shelton concedes, was largely consistent with Shelton’s own testimony. In light of

the fact that murder that was the direct causal result of a kidnapping constituted

second-degree murder, there is not a reasonable probability that had Thomas been

impeached with evidence of the secret deal, the result would have been different as

to the second-degree killing of Craig.

      3.     Theft convictions. Nor was the suppressed evidence material with

respect to Shelton’s theft convictions. Shelton was wearing Thorpe’s boots when

he turned himself in. His fingerprints were on a car stereo removed from the

victims’ car. On the stand, Shelton acknowledged receiving $100 from Silva the

day after the kidnapping. Accordingly, there is not a reasonable probability that

had Thomas been fully impeached, the jury would have reached a different result

with respect to Shelton’s convictions for the thefts from Thorpe and Craig.

      AFFIRMED IN PART.




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