                                                                              FILED
                           NOT FOR PUBLICATION                                   SEP 24 2012

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



                            FOR THE NINTH CIRCUIT


MATTHEW G. JENNINGS,                             No. 10-16432

              Petitioner - Appellant,            D.C. No. 4:01-cv-03751-PJH

  v.
                                                 MEMORANDUM*
D. L. RUNNELS,

              Respondent - Appellee.


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

                    Argued and Submitted September 12, 2012
                            San Francisco, California

Before: ALARCÓN, GRABER, and BERZON, Circuit Judges.

       Matthew Jennings appeals the district court’s partial denial of his 28 U.S.C.

§ 2254 habeas petition, which challenged his conviction and sentence of life

without parole for aiding and abetting first-degree murder and for the special

circumstances of felony murder and lying-in-wait. We review the district court’s



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
decision de novo, Runningeagle v. Ryan, 686 F.3d 758, 766 (9th Cir. 2012), and

affirm.

      1. Jennings contends that the introduction at his trial of certain portions of

his non-testifying accomplices’ confessions violated his Sixth Amendment right to

confrontation and was prejudicial error. This case predates Crawford v.

Washington, 541 U.S. 36 (2004), so Jennings’s Confrontation Clause claims are

governed by Ohio v. Roberts, 448 U.S. 56 (1980), and Lilly v. Virginia, 527 U.S.

116 (1999). We need not decide whether the challenged statements were

admissible under Roberts and Lilly. Even if their introduction was constitutional

error, it was harmless.

      Erroneous admission of out-of-court statements by a non-testifying declarant

is a trial-type error, Padilla v. Terhune, 309 F.3d 614, 621 (9th Cir. 2002), which

merits habeas relief only if it “had substantial and injurious effect or influence in

determining the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)

(internal quotation marks omitted); see also Ocampo v. Vail, 649 F.3d 1098, 1114

(9th Cir. 2011). We apply the Brecht test directly, rather than separately

considering the reasonableness of the state court’s harmlessness determination. Fry

v. Pliler, 551 U.S. 112, 121–22 (2007).




                                          -2-
      The challenged portions of the confessions could not have had a substantial

influence on Jennings’s murder conviction. The jury could have relied on a felony-

murder theory, which required proof only of Jennings’s intent to commit the

predicate felony—here, burglary or robbery—and that the murder occurred in the

course of that felony. See Duncan v. Ornoski, 528 F.3d 1222, 1233 (9th Cir. 2008)

(describing the requirements for a first-degree felony murder conviction in

California). Jennings does not challenge his convictions for burglary and robbery

on appeal or that the murder occurred in the course of the burglary and robbery.

Consequently, our harmlessness inquiry focuses only on the special circumstances

portion of the verdict. And, because the felony-murder special circumstance is

sufficient to uphold Jennings’s sentence of life without possibility of parole, we do

not address the lying-in-wait special circumstance.

      The challenged portions of the confessions were harmless with respect to the

felony-murder special circumstance because unchallenged statements, combined

with other testimony, provided strong, independent evidence that Jennings was a

“major participant” in the burglary and robbery who displayed “reckless

indifference to human life.” See Cal. Penal Code § 190.2(a)(17), (d). Delaware v.

Van Arsdall established the factors to be considered in determining whether a




                                         -3-
Confrontation Clause violation is prejudicial. 475 U.S. 673, 684 (1986). We apply

those factors.

      First, although the challenged statements figured to some degree in the

prosecution’s case, they were corroborated by, and cumulative of, evidence of

Jennings’s indifference to human life not challenged on appeal. In particular,

unchallenged statements established that Jennings came to the LeeWards store with

the other culprits; that there was a prior plan to set fire to the store, with the victim

inside; that Jennings and a codefendant were the ones who obtained the gasoline to

carry out this plot by siphoning it from a car; and that the gasoline was taken to the

crime scene and left nearby. Although it turned out that the victim was killed

without use of the gasoline and while Jennings was not present, Jennings’s

knowledge of and involvement in the gasoline plot is strong evidence that he went

into the robbery cognizant that the victim could be killed. The prosecution

emphasized the collection and planned use of the gas repeatedly in closing

arguments. That no fire was set does not make the evidence less probative of

Jennings’s “subjective awareness of the grave risk to human life created by his . . .

participation in the underlying felony,” as it remains strongly indicative of a plan

to assure that, one way or another, the victim would not live to identify the robbers.




                                           -4-
See People v. Estrada, 11 Cal.4th 568, 578 (1995) (defining “reckless indifference

to human life” under California law).

      Other evidence confirmed that Jennings was at least recklessly indifferent to

human life in carrying out the robbery. Some of the codefendants were armed

when they arrived with Jennings at the scene of the crime, making it evident that

violence against the victim was likely. Moreover, Jennings was aware that two of

the robbers were known to the victim but wore no disguises. Further, Jennings was

with the other robbers at various locations where the crime was discussed. Finally,

one witness, Cynthia Tipton, testified that another witness, Robert Standard, told

her he had heard the culprits planning both the robbery and the killing while

Jennings was present. Although Standard denied the statement at trial, the jury

could have credited Tipton rather than Standard. In light of this evidence and the

gasoline plot, of which Jennings was a part, we conclude the challenged statements

did not substantially influence the jury’s verdict.

      As to the “major participant” prong, essential to the felony-murder special

circumstance, evidence other than the challenged confessions persuasively

revealed Jennings’s role in the burglary and robbery to be at least “notable or

conspicuous in effect or scope.” People v. Proby, 60 Cal. App.4th 922, 933–34

(1998); Cal. Penal Code § 190.2(a)(17), (d). Jennings admitted his involvement in


                                          -5-
the robbery and burglary to his ex-girlfriends; unchallenged portions of the

codefendants’ confessions describing Jennings as the look-out established that he

came into the store with the other burglars and then served as the driver of the

getaway car; circumstantial evidence demonstrated his close relationship with the

accomplices; and Jennings shared substantially in the loot from the robbery. In

view of this evidence, the challenged statements could not have significantly

affected the verdict with regard to Jennings’s role in the underlying robbery and

burglary.

      2. Jennings’s challenge to the sufficiency of the evidence for the felony-

murder special circumstance fails because he cannot show that “no rational trier of

fact could have agreed with the jury.” Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per

curiam). Because reversal for insufficient evidence bars retrial, sufficiency review

under Jackson v. Virginia, 443 U.S. 307 (1979), must consider all the evidence

admitted by the trial court, regardless whether that evidence was admitted

erroneously. See McDaniel v. Brown, 130 S. Ct. 665, 672 (2010). The California

Court of Appeal reasonably applied Jackson in holding the evidence sufficient to

sustain the felony-murder special circumstance.

      3. Finally, the state court reasonably concluded that the admission of

testimony that Jennings had bragged about using a stun gun in a prior robbery did


                                         -6-
not render the trial fundamentally unfair in violation of due process. Even if this

evidence were introduced to show that Jennings committed the crime for which he

was on trial, the Supreme Court has not held that propensity evidence violates due

process. See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) (reserving the question

of whether admission of prior crimes evidence to show propensity would violate

the Due Process Clause); see also Holley v. Yarborough, 568 F.3d 1091, 1101 (9th

Cir. 2009) (“[The Supreme Court] has not yet made a clear ruling that admission of

irrelevant or overtly prejudicial evidence constitutes a due process violation

sufficient to warrant issuance of the writ.”). The absence of Supreme Court

precedent on point forecloses any argument that the state court’s decision was

contrary to or an unreasonable application of clearly established federal law. See

Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008).

      For the foregoing reasons, the district court’s denial of Jennings’s habeas

petition is AFFIRMED.




                                         -7-
