                                                                            FILED
                           NOT FOR PUBLICATION                               JAN 21 2016

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



                            FOR THE NINTH CIRCUIT


MICHAEL DURRELL WARD,                            No. 13-56805

              Petitioner - Appellant,            D.C. No. 5:12-cv-02043-VAP-SH

 v.
                                                 MEMORANDUM*
AMY MILLER, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                     Argued and Submitted November 2, 2015
                              Pasadena, California

Before: SCHROEDER, PREGERSON, and FRIEDLAND, Circuit Judges.

      Michael Ward appeals the district court’s denial of his petition for writ of

habeas corpus, in which he asserted instructional error and ineffective assistance of

counsel. Ward was first arrested for pimping minors, including the victim in this

case. From jail, Ward made a series of phone calls to a number of his associates.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
During these phone calls, he instructed them on a plan to kill the victim to keep her

from talking to the police about his pimping activities. Unknown to Ward and his

associates, the police recorded these conversations and ultimately discovered the

plan to kill the victim.

       At Ward’s trial, the Riverside County Superior Court gave an erroneous jury

instruction. Ward’s trial counsel did not object to this jury instruction.

Additionally, Ward’s counsel elicited damaging testimony from the prosecution’s

gang expert. Ward was subsequently convicted of conspiracy to commit murder.

       The California Court of Appeal affirmed Ward’s conviction. Ward then

filed a federal habeas petition, which the district court denied. We have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).

       Reviewing the district court’s analysis de novo, we affirm the district court’s

denial of Ward’s habeas petition. McNeely v. Blanas, 336 F.3d 822, 826 (9th Cir.

2003).

       1. Under California law, conspiracy to commit murder cannot be based on a

theory of implied malice. People v. Swain, 909 P. 2d 994, 998–99, 1001–02 (Cal.

1996). The California Court of Appeal asserted—and both parties agree—that it

was error to instruct the jury with the portion of CALCRIM 520 that stated that

implied malice is sufficient to establish an intent to kill. Since the State had the


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burden to prove specific intent—as opposed to implied malice—as an element of

the crime of conspiracy to commit murder, the erroneous jury instruction violated

Ward’s due process rights and thus rises to the level of a constitutional violation.

      However, the erroneous jury instruction did not have a “substantial and

injurious effect” on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619,

637–38 (1993). During closing arguments, the prosecutor explicitly asserted that it

was necessary for the jury to find that Ward intended for his associate to kill the

victim. This supported the prosecutor’s prior presentation of evidence during

closing arguments that Ward did indeed intend for his associate to kill the victim.

      Moreover, when CALCRIM 520 is read in conjunction with CALCRIM

5631—with which the jury was also instructed—and the prosecutor’s closing

statements, it was clear that a specific intent to kill was the requisite state of mind

to convict Ward for conspiracy to commit murder, and not simply the lower

standard of implied malice. Therefore, the erroneous jury instruction did not

prejudice Ward so as to create a substantial and injurious effect on the verdict.

      1
        CALCRIM 563 stated, in relevant part, “Michael Ward is charged in Count
1 with conspiracy to commit murder. To prove that the defendant is guilty of this
crime, the People must prove [inter alia] that . . . the defendant intended to agree
and did agree with one or more of the other defendants to intentionally and
unlawfully kill; [a]t the time of the agreement, the defendant and one or more of
the other alleged members of the conspiracy intended that one or more of them
would intentionally and unlawfully kill.”

                                            3
Brecht, 507 U.S. at 637–38. As a result, the California Court of Appeal decision is

not objectively unreasonable nor contrary to established Supreme Court precedent.

Williams v. Taylor, 529 U.S. 362, 409–10 (2000); 28 U.S.C. § 2254(d).

      2. Ward argues that he was denied his Sixth Amendment right to effective

assistance of counsel when his defense attorney, James Curtis, failed to object to

CALCRIM 520. While Curtis’s failure to object to a faulty jury instruction may

constitute deficient performance, Ward is unable to demonstrate that this failure

resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). The

instructions as a whole, coupled with the prosecutor’s statements, made clear that

the jury needed to find that Ward intended to kill the victim to convict Ward of

conspiracy to commit murder. Ward is unable to show a reasonable probability

that but for Curtis’s error, the outcome of the trial would have been different, or

that he was denied a fair trial. Id. at 694.

      Ward also fails to demonstrate that Curtis’s cross-examination of Phillip

Gomez, the prosecution’s gang expert, was deficient and resulted in prejudice.

While Gomez’s testimony about whether or not there was an agreement and intent

to kill the victim may have been damaging to Ward, Curtis’s subsequent questions

to Gomez appear to have been an attempt to impeach this testimony. As such, this

line of questioning, including the attempt to undermine Gomez’s crediblity, fell


                                               4
“within the wide range of reasonable professional assistance.” Strickland, 466

U.S. at 689.

      Ward is also unable to prove that Curtis’s cross-examination of Gomez was

prejudicial. During the trial court’s instructions to the jury, the judge stated that

the jurors were not required to accept expert witnesses’s opinions, and that the

jurors were to disregard any expert witness opinion that they found to be

unbelievable, unreasonable, or unsupported by the evidence. The evidence

demonstrates that Ward repeatedly gave instructions to his associates about the

details of the plan to kill the victim, including who would be involved, where the

victim lived, which weapon to use, and how to make it look like a robbery. These

conversations were captured in recordings and decoded by several members of the

plan. The police also recovered the weapon that was discussed in these

conversations. In light of the overwhelming evidence against Ward, Ward does not

show that the outcome of the trial would have been different if Gomez’s testimony

had been excluded. The California Court of Appeal decision was not contrary to

Supreme Court precedent.

      We AFFIRM the district court’s denial of Ward’s habeas petition.

      AFFIRMED.




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