                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 16 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


QUINCY ROBERTSON,                                No.   16-15075

              Petitioner-Appellant,              D.C. No. 4:10-cv-02633-PJH

 v.
                                                 MEMORANDUM*
JAMES WALKER, Warden,

              Respondent-Appellee.


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

                          Submitted December 14, 2016**
                             San Francisco, California

Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.

      Quincy Robertson, a California state prisoner, appeals the denial of his 28

U.S.C. § 2254 habeas corpus petition challenging his conviction by jury trial for

second degree murder and assault with a firearm. Robertson argues his conviction


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
should be vacated because he was prejudiced by improper jury instructions. We

disagree, and affirm the district court’s decision denying his petition.

      Robertson was convicted of the second degree murder of Kehinde Riley, and

assault with a deadly weapon and by means of force likely to inflict great bodily

injury of Ricky Harris, on February 7, 2011. Cal. Penal Code §§ 187–89,

245(a)(1). The jury was instructed that “it could convict [Robertson] of second

degree murder on a felony murder theory based on his commission of the offense

of grossly negligent discharge of a firearm (Pen. Code, § 246.3).” People v.

Robertson, 1 Cal. Rptr. 3d 353, 355 (Cal. Ct. App. 2003).

      On direct appeal, a California appellate court affirmed the conviction,

finding that the jury instructions were erroneous because the offense of grossly

negligent discharge of a firearm merges with the resulting homicide and thus

cannot serve as a predicate offense for second degree murder, but that any error

was harmless. Id. The California Supreme Court affirmed the conviction on

different grounds, concluding that “the merger doctrine did not bar instruction on

second degree murder based upon a felony-murder theory.” People v. Robertson,

34 Cal. 4th 156, 160 (2004).

      On March 30, 2009, the California Supreme Court overruled Robertson in

People v. Chun. 45 Cal. 4th 1172, 1201 (2009) (“We overrule People v. Robertson


                                           2
. . . .”). Chun held that “all assaultive-type crimes . . . merge with the charged

homicide and cannot be the basis for a second degree felony-murder instruction.”1

Id. at 1178. Robertson filed a petition for a writ of habeas corpus with the

California Supreme Court shortly after Chun, claiming he was prejudiced by the

faulty jury instructions given at trial. The Court denied his petition with a one-

sentence ruling. Oct. 14, 2009 Order, No. S172768 (Cal.) (“The petition for writ of

habeas corpus is denied.”). Robertson then filed a writ of habeas corpus in the

federal district court, which heard the case on the merits and issued a decision

denying the petition on January 15, 2016. Robertson v. Walker, No.

10-cv-02633-PJH, 2016 WL 192568 (N.D. Cal. Jan. 15, 2016). The district court

granted a certificate of appealability, id. at 16, and Robertson appealed.

      We review the district court’s decision de novo. Lopez v. Thompson, 202

F.3d 1110, 1116 (9th Cir. 2000) (en banc). However, the California Supreme

Court’s 2009 decision rejecting Robertson’s habeas petition is reviewed with great

deference because this case is governed by the Antiterrorism and Effective Death

Penalty Act (AEDPA). Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).


      1
        The predicate offense in Chun was shooting at an occupied vehicle, 45 Cal.
4th at 1178, not grossly negligent discharge of a firearm (the predicate offense in
Robertson). However, the government does not dispute that grossly negligent
discharge of a firearm qualifies as “assaultive” for purposes of the merger rule
under Chun.
                                            3
To prevail, Robertson must show that the decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d).

      The 2009 decision denying Robertson’s habeas petition was a decision on

the merits. Harrington v. Richter, 562 U.S. 86, 96, 100 (2011). We must determine

what arguments could have supported its decision. Id. at 102. The California

Supreme Court could have denied Robertson’s petition for one of two reasons—(1)

the Chun rule did not apply when Robertson’s conviction became final in 2004; or

(2) the Chun rule does apply in Robertson’s case, but any instructional error was

harmless. Either of these reasons suffices to affirm the district court’s decision

under AEDPA’s deferential standard of review.

      Robertson argues that California only clarified the elements of murder as

defined by statute, and no new legal rule was created.2 Citing Bunkley v. Florida,

he argues a due process violation occurs if a state does not apply a clarified version

of a statute to final convictions pre-dating the clarification. 538 U.S. 835, 840

(2003). Robertson misreads Bunkley. The Supreme Court just remanded a case to

the Florida Supreme Court to consider whether its first-time interpretation of a


      2
        There is no dispute that if California did create a new legal rule in Chun, no
Supreme Court decision would require California to apply this new rule
retroactively. See Moore v. Helling, 763 F.3d 1011, 1021–22 (9th Cir. 2014).
                                           4
criminal statute stated the law as it existed when Bunkley’s (the petitioner)

conviction became final. Bunkley, 538 U.S. at 842. And on remand, the Florida

Supreme Court concluded that despite the same statute having existed since 1901,

the law was different when Bunkley’s conviction became final. Bunkley v. Florida,

882 So.2d 890, 894 (Fla. 2004). Thus, no federal law prevents the California

Supreme Court from deciding that Chun states the correct interpretation of a statute

now, while a different interpretation controlled when Robertson’s conviction

became final. See id.

      Even assuming error, an independent review of the record shows that any

error was harmless. Morales v. Woodford, 388 F.3d 1159, 1171 (9th Cir. 2003).

We apply the Brecht v. Abrahamson test, asking whether any error “had substantial

and injurious effect or influence in determining the jury’s verdict.” 507 U.S. 619,

637 (1993) (internal quotation marks omitted). The district court correctly relied on

the overwhelming evidence of either express or implied malice in concluding any

error was harmless. Robertson, 2016 WL 192568, at *8–16. Additionally, we are

persuaded by the California Court of Appeal’s reasoning that the conviction for

assaulting Harris demonstrates that “the jury must have rejected appellant’s

defense,” and that the jury must have believed Robertson possessed either express

or implied malice. Robertson, 1 Cal. Rptr. 3d at 373. For similar reasons, we reject


                                          5
the argument any error would have prejudiced Robertson by depriving him of his

asserted affirmative defenses.

      AFFIRMED.




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