                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 06 2015

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



                           FOR THE NINTH CIRCUIT


PETER ELVIK,                                     No. 13-17530

              Petitioner - Appellee,             D.C. No. 3:04-cv-00471-GMN-
                                                 WGC
  v.

RENEE BAKER and ATTORNEY                         MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,

              Respondents - Appellants.



PETER ELVIK,                                     No. 14-15126

              Petitioner - Appellant,            D.C. No. 3:04-cv-00471-GMN-
                                                 WGC
  v.

RENEE BAKER and ATTORNEY
GENERAL OF THE STATE OF
NEVADA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                 Gloria M. Navarro, Chief District Judge, Presiding

                       Argued and Submitted April 14, 2015
                            San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges and KRONSTADT,**
District Judge.

      The Nevada Attorney General appeals the district court’s order conditionally

granting Peter Elvik’s 28 U.S.C. § 2254 habeas corpus petition, challenging his

conviction of open murder and robbery with the use of a deadly weapon.

      On appeal, the government does not argue that the district court erred in

determining that the Nevada Supreme Court was unreasonable in holding that the

trial court not was required to give an instruction based on Nev. Rev. Stat.

§ 194.010(2). Instead, the government argues that (1) the district court was

obligated to develop alternative theories to support the Nevada Supreme Court’s

decision, and (2) the district court erred by concluding that the error was not

harmless.

      1. The district court was not obligated to develop alternative theories to

support the Nevada Supreme Court’s decision. The Nevada Supreme Court did not

provide a summary decision without reasoning, as in Harrington v. Richter, 562



       **
             The Honorable John A. Kronstadt, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.

                                          2
U.S. 86, 96 (2011), or a decision that failed to address one of the claims, as in

Johnson v. Williams, 133 S. Ct. 1088, 1096-97 (2013). Instead, the Nevada

Supreme Court provided a reasoned decision that addressed all of the key issues in

the appeal. Therefore, the district court did not err by analyzing the rationale of the

Nevada Supreme Court as presented in its reasoned opinion.

      2. The trial court’s failure to provide a jury instruction regarding Nev. Rev.

Stat. § 194.010 was not harmless. “Habeas relief is warranted only if the error had

a ‘substantial and injurious effect or influence in determining the jury’s verdict.’”

Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (quoting Brecht v.

Abrahamson, 507 U.S. 619, 637-38 (1993)). The Supreme Court has explained:

      [I]f one cannot say, with fair assurance, after pondering all that
      happened without stripping the erroneous action from the whole, that
      the judgment was not substantially swayed by the error, it is
      impossible to conclude that substantial rights were not affected. The
      inquiry cannot be merely whether there was enough [evidence] to
      support the result, apart from . . . the error. It is rather, . . . whether
      the error itself had substantial influence. If so, or if one is left in
      grave doubt, the conviction cannot stand.

Kotteakos v. United States, 328 U.S. 750, 765 (1946). In other words, we do not

undertake a sufficiency of the evidence inquiry in making this decision. Rather,

we must determine whether the excluded instruction may have had a substantial

influence on the jury’s decision. Additionally, “[w]here the record is so evenly



                                           3
balanced that a judge feels himself in virtual equipoise as to the harmlessness of

the error and has grave doubt about whether an error affected a jury [substantially

and injuriously], the judge must treat the error as if it did so.” Merolillo, 663 F.3d

at 454 (internal quotation marks omitted) (alteration in original).

      Juries are presumed to follow the instructions given to them by the trial

court. Vitello v. United States, 425 F.2d 416, 422 (9th Cir. 1970). Important for

the jury to decide here was whether Elvik knew right from wrong. Nev. Rev. Stat.

§ 194.010(2) creates a presumption that children between the ages of eight and

fourteen are unable to distinguish right from wrong. Elvik proposed an instruction

based on Nev. Rev. Stat. § 194.010(2), which stated:

      All persons are liable to punishment except those belonging to the
      following class as it applies to this case:
      Children between the ages of eight years and fourteen years, in the
      absence of clear proof that at the time of committing the act charged
      against them they knew its wrongfulness. Peter Elvik was fourteen
      years old on August 31, 1995.

The trial court rejected the instruction. Nevada courts have described the language

of Nev. Rev. Stat. § 194.010(2) as creating a presumption that the defendant lacked

capacity to commit the crime. See Winnerford Frank H. v. State, 915 P.2d 291,

293 (Nev. 1996). Thus, had the trial court given the instruction, the jury would

have been required to presume that Elvik was not liable for punishment of his



                                           4
actions, unless the government proved by clear evidence that Elvik knew (at the

time he committed the crimes) that his conduct was wrong. The trial court’s error

completely relieved the government of that burden.

      We cannot say, with fair assurance, that the failure to tell the jury about this

presumption did not sway the jury’s verdict. Overcoming the presumption in this

case would have been daunting; the jury could not convict Elvik unless it found by

clear proof that Elvik knew that what he was doing was wrong when he committed

the crime. Instead, because the jury wasn’t told, the jury was never even aware

that acquittal under Nev. Rev. Stat. § 194.010(2) was an option.

      The government argues that, even without the instruction, the record

contains strong evidence indicating that Elvik understood the wrongfulness of his

actions. Of course, the government (and the dissent) emphasize the evidence of

Elvik’s understanding. However, this is not a sufficiency of the evidence analysis.

Instead of weighing the evidence, we must ask whether the error was substantial

and injurious. This record includes other evidence that could have led a jury to

conclude that Elvik did not understand that what he did was wrong. The jury was

deprived of the opportunity to follow the judge’s instruction, outlining the

presumption that Elvik did not understand right from wrong. We cannot suggest

that the error was not substantial and injurious. And even if we were conflicted


                                          5
concerning the error’s harmlessness, we are to treat the error as harmful.

Therefore, we agree with the district court in concluding that the failure to provide

a jury instruction on Nev. Rev. Stat. § 194.010 was not harmless.

      Because we affirm the district court’s conditional grant of Elvik’s habeas

petition, we do not reach the issues raised in Elvik’s cross appeal.

      AFFIRMED.




                                          6
                                                                                  FILED
                    Elvik v. Baker, Nos. 13-17530 & 14-15126                      MAY 06 2015

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

KRONSTADT, District Judge, concurring in part and dissenting in part:

      I concur with the conclusion of the majority that the district court “was not

obligated to develop alternative theories to support the Nevada Supreme Court’s

decision.” I also agree that defendant’s knowledge of wrongfulness is a

prerequisite to punishment under Nev. Rev. Stat. § 194.010(2). I respectfully

dissent, however, from the conclusion that “[t]he trial court’s failure to provide a

jury instruction regarding Nev. Rev. Stat. § 194.010 was not harmless.”

      As the majority observes, “[t]he government argues that, even without the

instruction, the record contains strong evidence indicating that Elvik understood

the wrongfulness of his actions.” It goes on, however, to state that “[t]his record

includes other evidence that could have led a jury to conclude that Elvik did not

understand that what he did was wrong.” It is with this latter finding that I

respectfully disagree.

      In my view, the record evidence is not “so evenly balanced” that a judge

could feel “in virtual equipoise as to the harmlessness of the error” or have “grave

doubt about whether an error affected a jury [substantially and injuriously] . . . .”

Merolillo, 663 F.3d at 454 (internal quotation marks omitted) (alteration in

original) (citing O’Neal v. McAninch, 513 U.S. 432, 435, 437-38 (1995)). Instead,
a consideration of the record evidence as a whole supports the conclusion that the

error did not have a substantial and injurious effect or influence on the verdict.

      The following record evidence shows that Elvik had a level of sophistication

and understanding that would cause any reasonable jury to conclude that, when he

shot and killed the victim, Elvik knew the difference between right and wrong:

      1.     After the shooting, Elvik took the victim’s briefcase and handgun. The

             briefcase contained the victim’s money clip and the keys to his

             vehicle. Elvik then drove the victim’s vehicle from Nevada to

             California.

      2.     After arriving in California, Elvik contacted his 13-year-old girlfriend,

             picked her up in the victim’s vehicle, and checked into a motel with

             her for the night. He took the victim’s handgun and money clip into

             the motel room.

      3.     The day after the shooting, at approximately 3:00 a.m., California law

             enforcement personnel, who had become aware of the events in

             Nevada, identified the vehicle outside the motel as the one that

             belonged to the victim of the shooting. They contacted the person

             working at the front desk of the motel and learned that Elvik was the

             guest associated with that vehicle. Shortly thereafter, the person at the


                                          2
     front desk called the room in which Elvik and his girlfriend were

     staying and told him to flee. Elvik and his girlfriend left the room.

     Elvik jumped from the balcony. Although his girlfriend was promptly

     apprehended, Elvik evaded law enforcement personnel for the next 14

     hours. During that time, he hid the victim’s handgun and money clip.

4.   Elvik testified at trial that he later went back and retrieved the

     handgun because he “didn’t want nobody to find it. I didn’t want

     some little kid to find it, or shoot, you know, or anything like that.”

5.   Upon being detained, but prior to his arrest, Elvik gave a false name to

     the police. He later told them his actual name.

6.   After being apprehended, and given a Miranda warning, Elvik initially

     denied any recollection of the shooting. He stated that he had taken

     LSD and that this likely clouded his memory. Later in that

     interrogation, Elvik admitted to shooting the victim. At trial, Elvik

     stipulated that a blood test showed that he was not under the influence

     of LSD, and he testified that he had lied when he told the police

     otherwise.

7.   During his interrogation, Elvik asked whether his actions in Nevada

     would result in his confinement in a juvenile hall in Nevada or


                                   3
             California. This showed sophistication about the link between where a

             crime is committed and the place of any resulting confinement.

      8.     During his interrogation, Elvik stated that he had considered leaving

             the victim’s handgun with Elvik’s friend Stephen. He stated, “I didn’t

             want to give it to [Stephen] because I guess he’s like on probation for

             doing drugs or something. So I didn’t want him to get in trouble for it

             but, you know?” He stated that he then decided to give the gun to

             Stephen with the expectation that Stephen would “take it over to

             [Elvik’s] mom’s office or whatever or the police station or whatever

             he’s going to do with it.”

      9.     At the time of the shooting, Elvik was 14 years and 11 months old.

             Thus, within a month he no longer would have qualified for the

             instruction under Nev. Rev. Stat. § 194.010(2).

      In my view, a consideration of the other evidence in the record does not

show that the totality of the evidence was “equally balanced” such that a judge

could be in equipoise as to the issue of harmless error. Elvik relies on the following

evidence to support his contrary position:




                                          4
1.   During his interrogation, he referred to his mother, who had disowned

     him and denied his request to return to her in California, by using a

     crude expletive;

2.   He stated that he might not have a long life ahead of him because

     there might be “some big earthquake” and he might “fall in the crack

     and then []die”;

3.   He answered some questions with “ah huh” instead of “yes” during

     his interrogation;

4.   He did not surrender to the police because he was “scared” and did not

     “think anyone would believe” him, something consistent with the

     recognition that he knew that his conduct was wrongful;

5.   During the interrogation, after being told that “everybody’s going to

     know exactly what happened” and that this was Elvik’s “chance to fill

     in, maybe, a couple of little minor details,” Elvik asked “why does it

     matter, whatever I tell you?” However, in context, these words




                                  5
             demonstrate that Elvik was asking why he needed to state what he had

             done given the evidence the police already had collected1; and

      6.     At the conclusion of the initial interrogation, Elvik asked if he would

             be sent to juvenile hall in Nevada or California. As stated above, this

             reflects sophistication. Moreover, even if this implied that Elvik

             misunderstood the seriousness of the punishment that might be

             imposed for killing the victim, it did not imply that he did not know

             that his conduct was wrongful.

      I agree with the majority that, “[i]nstead of weighing the evidence, we must

ask whether the error was substantial and injurious.” However, to make that

determination, it is necessary to consider the effect of the error in light of all the

evidence presented to the jury. The question is not whether the jury was “right in

      1
        After being asked to “fill in the little details” because the police “d[id]n’t
know exactly, you know, step by step what happened,” Elvik asked, “Well, what
does it matter anyway[?]” EOR 1517. After being told that what happened was not
“going to be a real big mystery,” Elvik asked, “Yeah, I know, so why . . . why does
it matter, whatever I tell you?” EOR 1511. Elvik later stated, “Well . . . well, you
obviously already know what happened, so what does it matter what I say?” EOR
1520. Subsequently, after being told that his girlfriend had stated that Elvik told
her that he shot the victim, Elvik responded, “It doesn’t matter anyways.” EOR
1527. Later, after being asked whether the victim fell on his back or on his stomach
after being shot, Elvik stated, “So, even if I do know, what is it . . . who cares?”
EOR 1528. After being told that things were “f***** right now” and that they
were “going to stay that way for awhile,” Elvik asked, “So what’s the difference if
they’re going to stay like that?” Id.

                                            6
their judgment” but is, instead, “what effect the error had or reasonably may be

taken to have had upon the jury's decision.” Kotteakos, 328 U.S. at 764. This

analysis “must take account of what the error meant to [the jury], not singled out

and standing alone, but in relation to all else that happened.” Id.

      I agree with the majority that this analysis is not a sufficiency of the

evidence test. See id. at 765. However, all relevant record evidence should be

considered. A conviction may not be overturned on “mere speculation that the

defendant was prejudiced by trial error”; actual prejudice must be suffered.

Calderon v. Coleman, 525 U.S. 141, 146 (1998); see also Fry v. Pliler, 551 U.S.

112, 119 (2007); Brecht, 507 U.S. at 621.

      For these reasons, which are based on a review of the relevant record, I am

not persuaded that Elvik suffered actual prejudice because the jury instruction that

he requested was not presented. Given the evidence at trial, I respectfully disagree

that showing Elvik understood the wrongfulness of his actions would have been a

“daunting” task. Instead, a reasonable jury could have reached only the contrary

conclusion.

      For these reasons, I respectfully dissent.




                                           7
