                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                              JAN 25 2013

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

DAVID LEON,                                      No. 11-15350

              Petitioner - Appellee,             D.C. No. 3:07-cv-03954-MHP

  v.
                                                 MEMORANDUM*
TOM FELKER, Warden,

              Respondent - Appellant.


                  Appeal from the United States District Court
                      for the Northern District of California
                 Marilyn H. Patel, Senior District Judge, Presiding

                      Argued and Submitted January 14, 2013
                            San Francisco, California

Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.



       The government appeals the district court’s partial grant of California state

prisoner Leon’s 28 U.S.C. § 2254 petition. Leon challenged his jury convictions

for second degree murder and discharging a firearm at an occupied motor vehicle,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and the district court vacated his murder conviction. We have jurisdiction under

28 U.S.C. § 2253(a) and we reverse.

      Leon was charged in state court with murder and shooting at an occupied

vehicle. The jury was instructed on both first and second degree murder. For the

second degree murder charge, the court told the jury that Leon could be convicted

if they found that he unlawfully killed Hernandez with malice aforethought or

during the commission of a felony inherently dangerous to life, specifically,

shooting at an occupied vehicle. The jury convicted Leon of second degree murder

and shooting at an occupied vehicle, but did not indicate on which theory its

murder verdict rested.

      Leon’s direct appeals in state court were unsuccessful and his state habeas

petitions were denied. The federal district court granted Leon’s habeas petition

and reversed his murder conviction. Its decision was based on its conclusion that

the felony-murder instruction violated Leon’s right to due process under the

Fourteenth Amendment. The court found that California law, as it existed at the

time of Leon’s trial, established that the crime of shooting at an occupied vehicle

merged with the homicide and could not be used for purposes of felony murder,

meaning that the jury should not have been instructed on this invalid theory.

According to the district court, this error was not harmless because the instructions


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“may have had a substantial influence on the conviction and there is a reasonable

probability that, but for the improper instructions, the result of the proceeding

would have been different.”

      We review de novo the district court’s decision to grant a petition for a writ

of habeas corpus. Merolillo v. Yates, 663 F.3d 444, 453 (9th Cir. 2011). To

provide Leon with due process, the government was required to obtain a conviction

by proving beyond a reasonable doubt the elements of murder under either the

malice theory or the felony-murder theory. Leon argues that the jury should not

have been instructed on felony-murder because the underlying felony that he

committed, shooting at an occupied vehicle, should have merged with the

homicide, making the felony-murder rule inapplicable. The California Supreme

Court recognized in People v. Chun that prior to its decision–the period during

which Leon was convicted–the “state of the law regarding merger [was]

‘muddled.’” 45 Cal. 4th 1172, 1189 (2009). We do not reach the question of

whether Chun established a new rule and applies retroactively or if it merely

clarified the law as it existed at the time of Leon’s trial.

      The evidence of implied malice presented at trial was overwhelming, and

even assuming the court’s instruction on the felony-murder theory was error, this

error was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993);


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California v. Roy, 519 U.S. 2, 4–5 (1996) (approving the harmless-error analysis

used by the dissent in Roy v. Gomez, 81 F.3d 863 (9th Cir. 1996) (en banc)

(Wallace, J. dissenting)). As the jury was instructed, implied malice can be found

when: (1) the killing resulted from a deliberate act, (2) the natural consequences of

the act are dangerous to human life, and (3) the act was deliberately performed

with knowledge of the danger to and with conscious disregard for human life. See

CAL. PENAL CODE § 188; People v. Watson, 30 Cal. 3d 290, 300 (1981). Leon

admitted to having intentionally fired his handgun, at very close range, into the

door of the car in which Hernandez was the passenger. The natural consequences

of Leon’s act were certainly dangerous to Hernandez’s life and Leon must have

disregarded this danger when he fired his pistol into the car. Leon’s statement that

he did not “want to shoot [Hernandez] in the head” does not negate the danger of

the act.

       WE REVERSE.




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