                                                                             FILED
                            NOT FOR PUBLICATION                               AUG 16 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RAKEISHA LANETTE SCOTT,                           No. 07-55315

              Petitioner - Appellant,             D.C. No. CV-05-02058-SVW

  v.
                                                  MEMORANDUM *
TINA HORNBEAK,

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                      Argued and Submitted December 7, 2010
                               Pasadena, California

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

       Rakeisha Lanette Scott was convicted in California state court for second

degree murder, Cal. Penal Code §§ 187, 189, assault on a child causing death, Cal.

Penal Code § 273ab, and felony child endangerment, Cal. Penal Code § 273a(a).

Scott appeals the district court’s denial of her petition for a writ of habeas corpus



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pursuant to 18 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We affirm.1

      The California Court of Appeal, which provided the last-reasoned state court

decision, determined that Scott’s statement to police at questioning—“I should talk

to an attorney”—was not an unequivocal request for an attorney, such that

admission of her subsequent statements to police violated her Fifth Amendment

rights under Miranda v. Arizona, 384 U.S. 436 (1966) and Edwards v. Arizona,

451 U.S. 477, 484-85 (1981). This determination was neither “contrary to,” nor an

“unreasonable application of, clearly established federal law.” 28 U.S.C.

§ 2254(d); see Davis v. United States, 512 U.S. 452, 459 (1994) (holding that

petitioner’s statement “Maybe I should talk to a lawyer” was not an unequivocal

request for counsel).

      The California Court of Appeal further determined that a government-

employed social worker, who testified to Scott’s admissions, was not required to

repeat Miranda warnings to Scott after Scott had already been given Miranda

warnings by police officers. This determination was neither “contrary to,” nor an

“unreasonable application of, clearly established federal law,” 28 U.S.C.



      1
       Because the parties are familiar with the facts of the case, we will repeat
them here only to the extent necessary to explain our decision.

                                          2
§ 2254(d). Repeat Miranda warnings are required only when questioning places

additional restraints on the freedom of an individual who is already in custody.

Cervantes v. Walker, 589 F.2d 424, 428 (9th Cir. 1978). To determine whether an

individual’s freedom is subject to additional restraints, this court looks to “[1] the

language used to summon the individual, [2] the physical surroundings of the

interrogation, [3] the extent to which he is confronted with evidence of his guilt,

and [4] the additional pressure exerted to detain him.” Id. at 428. The state court

determined that none of these factors existed such that Scott was subject to an

additional restraint above that which existed earlier in the evening, when she

received Miranda warnings and gave a statement to detectives. This determination

was neither contrary to, nor an unreasonable application of, clearly established

federal law as determined by the U.S. Supreme Court.

      Finally, although it is uncontested that the jury instructions in Scott’s trial

were erroneous, the state court’s determination that this error was harmless was

neither “contrary to,” nor an “unreasonable application of, clearly established

federal law.” 28 U.S.C. § 2254(d). To prevail on collateral attack on a state court

jury instruction, a habeas petitioner must do more than prove that the jury

instruction was “undesirable, erroneous, or even universally condemned.”

Henderson v. Kibbe, 431 U.S. 145, 154 (1975) (citation omitted). Rather, a habeas


                                           3
petitioner must prove that the improper instruction “by itself so infected the entire

trial that the resulting conviction violates due process.” Id. (citation omitted). The

mere “possibility” of a different verdict is “too speculative” to justify a finding of

constitutional error. Id. at 157.

      Here, part of the jury instructions misstated the elements for a murder

conviction based upon aider and abettor liability: one is not liable for murder for

acts the natural and probable consequences of which are merely felony child

endangerment. To be liable as an aider and abettor under a natural and probable

consequences doctrine, the jury must find that the co-principal2 committed the

charged offense (here, murder) not just the predicate offense (here, felony child

endangerment).

      The jury was erroneously instructed that Scott could be convicted of murder

(the target offense) if it found “that a co-principal in such crime [Foster] committed

the crime of Felony Child Endangerment.” (emphasis added). However, the state

court found the error harmless, because the instructions further required the jury to

find that the “crime of Murder as charged in Count One was a natural and probable




      2
          The jury was properly instructed that Scott and Foster were co-principals.

                                           4
consequence of the crime of Felony Child Endangerment.”3 The state court

reasoned that, in light of the evidence at trial, the only people who possibly could

have committed the “crime of Murder” as a natural and probable consequence of

felony child endangerment were Scott or her co-defendant Foster.

      Thus, the jury either had to find that Scott committed the murder directly, or

that Foster committed the murder and that Scott aided and abetted Foster. Under

the aided and abetted theory, the “natural and probable consequence” test was an

objective one. The jury in this case was so instructed, and Scott does not challenge

that part of the instruction. To convict Scott as an aider and abetter, the jury was

instructed that it had to be satisfied beyond a reasonable doubt that a reasonable

person would have expected that “the crime of Murder . . . was a natural and

probable consequence of the commission of the crime of Felony Child

Endangerment.” Because Scott and Foster acted together, and because the

evidence presented to the jury did not distinguish between the two of them in terms

of what each objectively could have expected, this test would necessarily produce

the same outcome as to each of the two. If the jury found Scott guilty of murder

under this instruction, the jury must have found facts that logically would have


      3
       Scott does not contend that the cross-referenced murder charge in Count
One was deficient. Moreover, per a stipulation by the parties, the jury instructions
for Count One were not included in the trial court’s record.

                                           5
resulted in a conviction of Foster for murder. That Foster was actually tried

separately and was acquitted of murder based on the evidence in his trial does not

alter what Scott’s jury necessarily found based on the evidence presented in her

trial.

         We cannot hold that the state court’s determination that the jury instructions

did not violate Scott’s constitutional rights was “contrary to,” or an “unreasonable

application of, clearly established federal law,” 28 U.S.C. § 2254(d). For the

reasons given by the state court, we are not convinced—in light of the jury

instructions as a whole—that the error in instruction could have swayed the jury’s

verdict. Yet even were we convinced the jury could have reached a different

verdict on the murder charge, but for the erroneous jury instruction, we cannot hold

that the state court’s determination that no different jury verdict could have

resulted from an error-free instruction was contrary to or an unreasonable

application of clearly established federal law.

         For the foregoing reasons, the judgment of the district court is AFFIRMED.




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