                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JAMES FREDDIE CAVITT,                    No. 10-16988
             Petitioner-Appellant,
                                            D.C. No.
                v.                       5:05-cv-03064-
                                               JF
VINCE CULLEN, Warden,
            Respondent-Appellee.           OPINION


      Appeal from the United States District Court
         for the Northern District of California
       Jeremy D. Fogel, District Judge, Presiding

                Argued and Submitted
      March 13, 2013—San Francisco, California

                 Filed August 29, 2013

   Before: John T. Noonan, Raymond C. Fisher, and
        Jacqueline H. Nguyen, Circuit Judges.

               Opinion by Judge Fisher
2                       CAVITT V. CULLEN

                           SUMMARY*


                          Habeas Corpus

    The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging the
California Supreme Court’s construction and application of
the felony murder rule.

    Petitioner and a friend robbed the stepmother of
petitioner’s girlfriend, then left the stepmother hogtied on the
bed but alive. They pretended to bind the girlfriend and
placed her on the bed next to her stepmother. Petitioner
claimed that the girlfriend killed her stepmother after he left.

    The panel first rejected petitioner’s contention that the
requirement of a “logical nexus” between the felony and the
victim’s death under California law is unconstitutionally
vague, because the California Supreme Court provided
guidance as to what a logical nexus means, and because there
were objective facts in this case that connected the victim’s
death to the felony, even if someone else killed her after
petitioner left the scene.

    The panel next held that the California Supreme Court’s
adoption of the logical nexus rule in petitioner’s case was not
an unforeseeable and retroactive judicial expansion of
liability that violated clearly established federal law, when
California case law suggested but no court had held that a


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     CAVITT V. CULLEN                        3

robber was not liable for a killing that his co-felon committed
during the robbery for reasons independent of the robbery.

    The panel rejected petitioner’s challenge to the trial
court’s instructions relating to felony murder, because there
was no harm in limiting the jury’s consideration of evidence
that the girlfriend hated her stepmother, and the failure to
instruct explicitly in terms of “nexus” was, at most, harmless
error.



                         COUNSEL

Neil Jacob Rosenbaum, Rosenbaum & Associates, San
Francisco, California, for Petitioner-Appellant.

Juliet B. Haley (argued), Deputy Attorney General, Kamala
D. Harris, Attorney General of California, Dane R. Gillette,
Chief Assistant Attorney General, Gerald A. Engler, Senior
Assistant Attorney General, Peggy S. Ruffra, Supervising
Deputy Attorney General, San Francisco, California, for
Respondent-Appellee.


                         OPINION

FISHER, Circuit Judge:

    James Freddie Cavitt and his girlfriend Mianta McKnight
robbed the house of Betty McKnight, Mianta’s stepmother.
Cavitt admits that he and Mianta robbed the victim’s home
and left her hogtied and face-down with a sheet taped around
her head. He contends, however, that Betty was alive, albeit
4                    CAVITT V. CULLEN

breathing laboriously, when he left. Betty McKnight was not
breathing and had no pulse by the time police arrived 22
minutes later. Cavitt speculates that, after he left, Mianta
killed Betty because of personal hatred, a motive he says was
unrelated to the robbery. The state trial court, reasoning that
Cavitt’s theory, even if true, would not absolve him of felony
murder, did not let him present his theory to the jury. He was
convicted of felony murder.

     The California Supreme Court held that, regardless of
who killed Betty, Cavitt could be liable for felony murder
because there was a “logical nexus” between the robbery and
Betty’s death. Seeking a federal writ of habeas corpus, Cavitt
argues that the California Supreme Court’s decision violated
his constitutional rights. Specifically, he argues that the
“logical nexus” requirement is unconstitutionally vague, that
its application in his case was unconstitutionally retroactive
and that the trial court’s evidentiary rulings and jury
instructions violated his constitutional rights. Reviewing
with the deference AEDPA requires of us, we cannot agree.
The California Supreme Court gave adequate guidance for
how the logical nexus test should be applied, such that it did
not clearly violate the Constitution’s prohibition on vague and
standardless statutory constructions. Although the court
articulated the logical nexus formulation for the first time in
Cavitt’s appeal, its previous articulations of the felony murder
rule at the time of Cavitt’s crime were such that the logical
nexus test was not unexpected and indefensible by reference
to existing law. Accordingly we cannot say that adoption of
the logical nexus rule was impermissibly retroactive. As for
Cavitt’s evidentiary objections, they stem from his objection
to the logical nexus test, so we also see no error in the trial
court’s evidentiary rulings. Finally, because there is an
obvious logical nexus between Cavitt’s actions and Betty’s
                     CAVITT V. CULLEN                       5

death, any error resulting from the omission of the “logical
nexus” phrasing from the jury instructions was harmless.
Accordingly, we affirm the district court’s denial of Cavitt’s
habeas petition.

                       BACKGROUND

    Cavitt, along with his girlfriend Mianta McKnight and a
friend named Robert Williams, set out to rob Mianta’s
stepmother Betty McKnight. In December 1995 the three met
at the McKnight house. Mianta let in Cavitt and Williams
and told them that Betty was upstairs in bed. Cavitt and
Williams went upstairs, threw a sheet over Betty’s head and
fastened it with duct tape. They fastened her wrists together
with plastic flex cuffs and used a rope to bind her ankles.
They then used the rope to tie together Betty’s legs, her arms
and the sheet they had already taped around her head. During
the process, Cavitt and Williams punched Betty repeatedly to
subdue her, causing extensive bruising to her face, shoulders,
arms, legs, ankles and wrists.

   With Betty subdued, the trio searched the bedroom and
removed cash, cameras, Rolex watches, jewelry and two
handguns. Before leaving, Cavitt and Williams pretended to
bind Mianta and placed her on the bed next to her stepmother.
Cavitt and Williams claim they left Betty face down on the
bed, albeit breathing laboriously.

    Cavitt and Williams left the McKnight home at 7:30 p.m.
Mianta freed herself and, at 7:44 p.m., called her father and
told him they had been robbed. Police arrived at the house at
7:52 p.m. and, finding Betty without a pulse, began
administering CPR at 7:53 p.m. Paramedics restored Betty’s
pulse at 8:25 p.m., but she had suffered irreparable oxygen
6                      CAVITT V. CULLEN

deprivation and was declared dead the following morning.
The cause of death was asphyxiation.

    A jury convicted Cavitt of, among other things, first
degree murder with the special circumstances of robbery and
burglary. The state’s theory was felony murder. Cavitt
sought to rebut the felony murder theory by arguing that
Mianta must have killed Betty after they had left, for reasons
unrelated to the burglary. To that end he tried to introduce
evidence that Mianta hated her stepmother. The trial court
held that Cavitt’s defense was untenable. Accordingly, it
issued a limiting instruction that evidence of Mianta’s hatred
of her stepmother should not be considered for purposes of
the felony murder charge, and did not instruct the jury on this
theory.1 Instead, the trial court gave the following
instructions:

        In order to prove this crime, each of the
        following elements must be proved: one, a
        human being was killed; two, the killing was
        unlawful; and three, the killing occurred
        during the commission or attempted
        commission of robbery or burglary.

        The unlawful killing of a human being,
        whether intentional, unintentionally or
        accidental, which occurs during the
        commission or as a direct causal result of
        robbery or burglary, is murder of the first
        degree when the perpetrator had the specific
        intent to commit that crime. The specific

  1
    The trial court did admit the testimony for the limited purpose of
proving the burglary and robbery special circumstances.
                     CAVITT V. CULLEN                       7

       intent to commit robbery or burglary and the
       commission of such crime must be proved
       beyond a reasonable doubt.

       A killing is committed in the commission of a
       felony if the killing and the felony are part of
       one continuous transaction. There is no
       requirement that the homicide occur while
       committing or while engaged in the felony or
       that the killing be part of a felony other than
       that the two acts be part of one continuous
       transaction.

    The jury convicted, and the judgment was affirmed by the
California Court of Appeal in an unpublished opinion. Cavitt
then sought review by the California Supreme Court, which
granted review and affirmed the convictions in a published
opinion. See People v. Cavitt, 91 P.3d 222 (Cal. 2004). The
district court denied Cavitt’s habeas petition, and we granted
a certificate of appealability.

                  STANDARD OF REVIEW

    We review the decision to deny relief under 28 U.S.C.
§ 2254 de novo. See Bribiesca v. Galaza, 215 F.3d 1015,
1018 (9th Cir. 2000). “Under the Anti-Terrorism and
Effective Death Penalty Act of 1996 [AEDPA], a habeas
petition will not be granted with respect to any claim
adjudicated on the merits in a state court unless the
adjudication ‘(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light
8                    CAVITT V. CULLEN

of the evidence presented in the State court proceeding.’” Id.
(quoting 28 U.S.C. § 2254(d)). A decision that is contrary to
or an unreasonable application of clearly established federal
law does not warrant habeas relief unless the error was
prejudicial. See Brecht v. Abrahamson, 507 U.S. 619, 637–38
(1993).

                        DISCUSSION

    Cavitt contends that, after he left, Mianta must have
asphyxiated Betty for reasons unrelated to the robbery. There
is at least some evidence in favor of this theory, so – as did
the California Supreme Court – we accept it as our point of
departure. We assume throughout that Cavitt is correct and
that Mianta killed Betty after he left and out of malice.

    We granted a certificate of appealability on three issues:
(1) whether the California Supreme Court’s construction of
the felony murder rule rendered the rule unconstitutionally
vague; (2) whether the rule’s application to Cavitt was
unconstitutionally retroactive in violation of Bouie v. City of
Columbia, 378 U.S. 347 (1964); and (3) whether the trial
court’s jury instructions on felony murder, together with its
evidentiary rulings, violated Cavitt’s constitutional rights.
We discuss each in turn.

                              I.

    The California Supreme Court held that, under California
law, “there must be a logical nexus – i.e., more than mere
coincidence of time and place – between the felony and the
act resulting in death before the felony-murder rule may be
applied to a nonkiller.” Cavitt, 91 P.3d at 227. Cavitt argues
that this test is unconstitutionally vague.
                     CAVITT V. CULLEN                        9

    To satisfy due process, “a penal statute [must] define the
criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory
enforcement.” Kolender v. Lawson, 461 U.S. 352, 357
(1983). Outside the First Amendment context, we do not
consider “whether the statute is unconstitutional on its face,”
but rather “whether the statute is impermissibly vague in the
circumstances of [the] case.” United States v. Rodriguez,
360 F.3d 949, 953 (9th Cir. 2004) (quoting United States v.
Purdy, 264 F.3d 809, 811 (9th Cir. 2001)). The void-for-
vagueness doctrine can apply to statutory constructions as
well as statutory language. Cf. United States v. Shetler,
665 F.3d 1150, 1164–65 (9th Cir. 2011) (holding that a
statute was not unconstitutionally vague when viewed
through the prism of this court’s narrowing construction).

     Cavitt argues that the “logical nexus” terminology fails
this test, but he rests on general principles and cites no
authority aside from cases defining the void-for-vagueness
doctrine. As the district court noted, the California Supreme
Court provided guidance as to what a logical nexus means.
It requires “more than mere coincidence of time and place,”
and instead turns on “the existence of objective facts that
connect the act resulting in death to the felony the nonkiller
committed or attempted to commit.” Cavitt, 91 P.3d at 227,
233. Such objective facts were plentiful here. Even under
Cavitt’s theory of the case – that Mianta killed her stepmother
for reasons unrelated to the robbery and after Cavitt left –
Mianta was in a position to do so because Cavitt and
Williams had already beaten Betty, bound her, covered her
face with a sheet, fastened the sheet with duct tape and given
Mianta cover by allowing her to blame the killing on the
“robbers.” There is a clear connection between the felony
10                     CAVITT V. CULLEN

Cavitt set out to commit and Betty McKnight’s subsequent
death. Therefore, we reject Cavitt’s void-for-vagueness
argument.

                                 II.

    An “unforeseeable and retroactive judicial expansion of
narrow and precise statutory language” violates due process.
Bouie v. City of Columbia, 378 U.S. 347, 352 (1964). This
rule applies not just to judicial expansions of statutory
language, but also where a court switches from a narrow
judicial construction of a statute to a broader construction.
See Marks v. United States, 430 U.S. 188, 195–96 (1977)
(holding that Bouie’s retroactivity rule was implicated when
the Supreme Court shifted from a narrow interpretation of
obscenity laws to a broader one). Cavitt argues that, in 1995,
California’s felony murder rule would not have encompassed
a killing committed by an accomplice during the commission
of a felony but not in furtherance of the crime.2 Only in its
2004 opinion in Cavitt’s case did the California Supreme
Court expressly say that the rule covered such a killing so
long as a “logical nexus” between the felony and killing was
present. Cavitt contends that this was an “unforeseeable and
retroactive judicial expansion” of liability in violation of
Bouie. Although Cavitt’s argument has some force, we
cannot agree in light of the substantial deference AEDPA
requires us to give to state courts. Cavitt has identified no
case where the California Supreme Court held that a criminal
defendant is not liable for felony murder in circumstances
like his. On the contrary, some authority demonstrates that


  2
    “Because the Bouie analysis focuses on notice to the defendant, we
look only to cases decided before the crime was committed.” Clark v.
Brown, 450 F.3d 898, 912 (9th Cir. 2006).
                     CAVITT V. CULLEN                       11

the application of the felony-murder rule to a defendant like
Cavitt was either unsettled or appropriate. Thus, we must
defer to California’s interpretation of its own rule.

    After oral argument, we ordered supplemental briefing to
address the United States Supreme Court’s recent decision in
Metrish v. Lancaster, 133 S. Ct. 1781 (2013), which
considered a Bouie claim similar to Cavitt’s and therefore
informs our decision. The issue there was the diminished-
capacity defense to murder. At the time of the crime, the
Michigan Court of Appeals had consistently recognized a
diminished-capacity defense, the Michigan Supreme Court
had repeatedly referred to the defense “without casting a
shadow of a doubt on it” and the defense was included in the
Michigan State Bar’s pattern jury instructions. Id. at 1786.
The defense was also featured in the Model Penal Code,
favored by the American Bar Association’s criminal-justice
guidelines and accepted in a majority of states. See id. at
1791–92. After the crime but before Lancaster’s trial, the
Michigan Supreme Court abolished the defense. See id. at
1790–91. “Noting that previously it had ‘acknowledged in
passing the concept of the diminished capacity defense,’
Michigan’s high court emphasized that it had ‘never
specifically authorized use of the defense in Michigan
courts.’” Id. at 1790 (footnote and alterations omitted)
(quoting People v. Carpenter, 627 N.W.2d 276, 281 (Mich.
2001)). The Michigan courts held that Lancaster was not
entitled to a diminished capacity instruction, and the United
States Supreme Court held that “the Michigan Court of
Appeals’ decision applying [the new rule] retroactively does
not warrant disapprobation as an unreasonable application of
clearly established federal law,” as would be required to grant
habeas relief. Id. at 1791 (quoting 28 U.S.C. § 2254(d)(1))
(internal quotation marks and alterations omitted). The Court
12                    CAVITT V. CULLEN

reasoned that Bouie is not violated “where a state supreme
court, squarely addressing a particular issue for the first time,
reject[s] a consistent line of lower court decisions based on
the supreme court’s reasonable interpretation of the language
of a controlling statute.” Id. at 1792. This is because
“[f]airminded jurists could conclude that a state supreme
court decision of that order is not ‘unexpected and
indefensible by reference to existing law.’” Id. (quoting
Rogers v. Tennessee, 532 U.S. 451, 462 (2001)) (alteration
omitted).

    Before Cavitt, most California felony-murder cases
defined felony murder as a killing done “in furtherance” of
the felony. Taken literally and pushed to its limit, this
formulation supports Cavitt’s argument. Under his theory,
Mianta killed Betty out of animus, not to further the robbery.
A careful reading of the cases, however, reveals them to be
like the “diminished capacity” references that the Michigan
Supreme Court cast aside when it abolished the diminished
capacity defense in Michigan. Although the California courts
had used the words “in furtherance” quite frequently, they
had never squarely considered the issue here: whether a
robber is liable for felony murder when his co-robber kills the
target of the robbery out of malice rather than a desire to
further the robbery.

    The “in furtherance” line of cases apparently began with
People v. Vasquez, 49 Cal. 560, 563 (1875), which held that
it was a correct statement of the law to instruct the jury that
a co-felon is guilty of murder if the murder was committed in
                          CAVITT V. CULLEN                               13

furtherance of the common purpose to rob.3 The “in
furtherance” phrase in the modern era can be traced to People
v. Schader, 401 P.2d 665, 674 (Cal. 1965), overruled on other
grounds by People v. Cahill, 853 P.2d 1037 (Cal. 1993),
which used the phrase but did not rely on it. Schader was
immediately followed by People v. Washington, 402 P.2d
130, 133–34 (Cal. 1965), which held that a robber was not
guilty of felony murder when the victim shot an accomplice
while resisting the robbery. Since then, the “in furtherance”
requirement has been frequently repeated, but infrequently




  3
     For other cases in the Vasquez line, see Pizano v. Superior Court,
577 P.2d 659, 665 (Cal. 1978) (“[P]etitioner may be found guilty of
murder for a killing attributable to the act of his accomplice if the act was
committed in furtherance of the common design.”); People v. Satchell,
489 P.2d 1361, 1365 (Cal. 1971), overruled on other grounds by People
v. Flood, 957 P.2d 869 (Cal. 1998) (“[F]or example, we have refused to
apply the doctrine in cases wherein the killing is committed by persons
other than the defendant or an accomplice acting in furtherance of a
common felonious design . . . .”); People v. Terry, 466 P.2d 961, 987 (Cal.
1970) (noting that a proposed instruction requiring furtherance “correctly
stat[ed] the law”); People v. Gilbert, 408 P.2d 365, 374 (Cal. 1965),
vacated on other grounds, 388 U.S. 263 (Cal. 1967) (“Under the rules
defining principals and criminal conspiracies, the defendant may be guilty
of murder for a killing attributable to the act of his accomplice. To be so
guilty, however, the accomplice must cause the death of another human
being by an act committed in furtherance of the common design.”); People
v. Lawrence, 76 P. 893, 897 (Cal. 1904) (stating the “rule of absolute
responsibility of a party for a homicide committed by his associates in
furtherance of their common purpose to rob”); People v. Olsen, 22 P. 125,
126 (Cal. 1889) (hypothesizing that the felony murder doctrine would not
be applicable if the murder were “a fresh and independent product of the
mind of one of the conspirators outside of and foreign to the common
design”).
14                       CAVITT V. CULLEN

applied or subjected to meaningful examination.4 Of those
cases that have analyzed or relied on it, many did not involve
killings committed by co-felons.5 Of the very few that did
consider killings done by a co-felon, in each case the “in
furtherance” recitation was dictum and the court ultimately
upheld the defendant’s conviction. Terry stated that it was a
correct statement of the law that “where . . . one who is acting
jointly in the commission of a crime with another . . .
commits an act which is neither in furtherance of the object
of the . . . intended crime nor the natural and probable
consequence of an attempt to attain that object . . . no
responsibility therefor attaches to any of his confederates,”
but noted that the statement “had no application to the facts
of the case.” 466 P.2d at 987 & n.18. And Olsen held that,
because an instruction excluded murders that were “a fresh
and independent product of the mind of one of the
conspirators outside of and foreign to the common design,”
it did not need to consider counsel’s argument that the murder
had been outside the common felonious purpose. 22 P. at
126.



 4
   Satchell, Schader, Lawrence and Vasquez are examples of cases where
the California Supreme Court recited the formulation but did not consider
the issue or rely on the formulation. Satchell, 489 P.2d at 1366; Schader,
401 P.2d at 674; Lawrence, 76 P. at 897; Vasquez, 49 Cal. at 563.
  5
    Washington and Gilbert are examples of cases where the California
Supreme Court applied the “in furtherance” requirement to killings
committed – not by a co-felon – but by a third party like a police officer
or victim. In those cases the California Supreme Court held that the
felony murder rule is not implicated when a crime victim or police officer
kills an accomplice because the killing is neither “committed by the
defendant [n]or by his accomplice acting in furtherance of their common
design.” Washington, 402 P.2d at 134; see also Gilbert, 408 P.2d at
373–74.
                           CAVITT V. CULLEN                                15

    Cavitt identifies no case where the California Supreme
Court has ever absolved a robber of liability for a killing his
co-felon committed because the killing was not “in
furtherance” of the robbery. Before its 2004 decision in this
case, the California Supreme Court had never squarely
considered the issue. As in Lancaster, the state high court’s
prior cases offered hints and implied that such a robber would
not be liable but, as in Lancaster, AEDPA requires us to
respect the California Supreme Court’s decision to ignore its
previous intimations when squarely presented with the issue
for the first time.

     A second line of authority, although older and less
frequently invoked, confirms that the State of California’s
felony murder rule was not settled in 1995. That line of cases
apparently dates to People v. Martin, 85 P.2d 880, 883 (Cal.
1938), and People v. Perry, 234 P. 890, 896 (Cal. 1925),
which stated that “if a human being is killed by any one of
several persons jointly engaged at the time of such killing in
the perpetration of or an attempt to perpetrate the crime of
robbery . . . each and all of such persons so jointly engaged
. . . are guilty of murder of the first degree.”6 Most of the

  6
     For other cases in the Martin/Perry line, see People v. Whitehorn,
383 P.2d 783, 788 (Cal. 1963) (noting that there need not be a “strict
causal relation between the felony and the homicide [so long as] the
killing and the felony are parts of one continuous transaction.”); People
v. Chavez, 234 P.2d 632, 640 (Cal. 1951) (“Chavez erroneously assumes
that to bring a homicide within the terms of section 189 of the Penal code,
the killing must have occurred . . . ‘in pursuance’ of [a felony] . . . . The
law of this state has never required proof of a strict causal relationship
between the felony and the homicide.”); People v. Bernard, 169 P.2d 636,
639 (Cal. 1946) (“Even where the killing in perpetration or attempted
perpetration of one of the named felonies is unintended and accidental,
nevertheless . . . ‘the offender is guilty of murder of the first degree by the
force of the statute.’” (quoting People v. Lindley, 161 P.2d 227, 233 (Cal.
16                       CAVITT V. CULLEN

cases in this line are not helpful for the same reason that most
of the cases in the Vasquez line are not helpful: they repeat
their chosen formulation without either analyzing it or
applying it in any way that is meaningful here.7 A few such
cases suggested that a killing need not have been “in
furtherance” of a felony to constitute felony murder, however.
In Whitehorn, one man raped a woman while an accomplice
sat in the back seat of a car. See 383 P.2d at 785. Later, the
rapist pinned the woman down while the accomplice
strangled her. See id. The rapist requested an instruction that


1945))); Lindley, 161 P.2d at 233 (“Where the murder is committed in
perpetration or attempted perpetration of any of the enumerated felonies,
the offender ‘is guilty of murder of the first degree by force of the
statute.’” (quoting People v. Cabaltero, 87 P.2d 364, 366 (Cal. Ct. App.
1939))); People v. Waller, 96 P.2d 344, 349 (Cal. 1939) (“[I]f a homicide
is committed by one of several confederates while engaged in perpetrating
the crime of robbery in furtherance of a common purpose, the person or
persons engaged with him in the perpetration of the robbery but who did
not actually do the killing, are as accountable to the law as though their
own hands had intentionally fired the fatal shot . . . .”); People v. Ross,
154 Cal. Rptr. 783, 788 (Cal. Ct. App. 1979) (“Any unlawful killing,
intentional or otherwise, committed in the perpetration of robbery or
burglary for the intended purpose of theft constitutes the crime of first-
degree murder.”); People v. Hutchinson, 61 Cal. Rptr. 868, 872–73 (Cal.
Ct. App. 1967) (same as Waller); see also Cabaltero, 87 P.2d at 368–69
(holding that it did not matter whether a killing was “in furtherance” of a
robbery when one co-conspirator shot another).
    7
      Martin held that a getaway driver was liable for a murder his
accomplice committed in the course of a robbery; the murder was
undisputably a part of the robbery. See 85 P.2d at 881–84. Perry held
that bank robbers were liable for murder after one of the robbers killed a
police officer in a firefight; again there was no question but that the
murder was a part of the robbery. See 234 P. at 891–92, 896. In Bernard,
Waller and Hutchinson, there was similarly no question that the murder
had occurred as part of the robbery. Bernard, 169 P.2d at 638–39; Waller,
96 P.2d at 345–47; Hutchinson, 61 Cal. Rptr. at 869–70.
                          CAVITT V. CULLEN                               17

the death must have “ensued in consequence of the forcible
rape.” Id. at 787. The California Supreme Court held that the
instruction was properly denied because there need not be a
“strict causal relation between the felony and the homicide
[so long as] the killing and the felony are parts of one
continuous transaction.” Id. at 788. In Ross, two men robbed
a 90-year-old victim. According to the defendant, his
accomplice then tied the victim to a bed, beat him with a pipe
and set the bed on fire. See 154 Cal. Rptr. at 786. The
defendant, wanting no part, left. The California Court of
Appeal held that he was nevertheless liable for felony murder
because “the victim was killed during the course of the
robbery as a part of a continuing criminal transaction.” Id. at
788. In Cabaltero, one robber shot a lookout whose poor job
performance had angered him. See 87 P.2d at 366. The other
robbers attempted to defend by arguing that the killing “was
not in furtherance” of the robbery. Id. at 368. The California
Court of Appeal held that the defense “is not available . . . to
coconspirators in cases such as this, where the killing is done
during the perpetration of a robbery in which they were
participating.” Id. In each of these cases, the California
Supreme Court or California Court of Appeal upheld a felony
murder conviction where the killing was, at least arguably,
not done in furtherance of the felony.

    Clearly, then, we cannot say the reach of California’s
felony murder rule was firmly settled in 1995.8 Indeed, the


  8
    We reject the state’s contention that cases imposing felony-murder
liability for accidental killings support its position. As Cavitt points out,
an act may be done purposefully and in furtherance of a felony, but
accidentally result in death. Cases imposing felony-murder liability in
such situations shed no light on whether liability may be imposed for an
intentional killing done by a co-felon for a purpose unrelated to the felony.
18                       CAVITT V. CULLEN

California Supreme Court acknowledged that there were two
valid lines of felony murder authority that might lead to
inconsistent results in some cases. In People v. Pulido,
936 P.2d 1235 (Cal. 1997), decided two years after Cavitt’s
crime but before his trial, the California Supreme Court noted
that “our formulations of the rule establishing complicity of
one robber in another robber’s homicidal act have varied in
their precise language and perhaps in the exact scope of
complicity intended. . . . [But] [u]nder neither of the
approaches . . . does complicity in a felony murder extend to
one who joins the felonious enterprise after the killing has
been completed.” Id. at 1240 (second and third emphases
added).

     In sum, Cavitt is unable to identify any California case
actually absolving a criminal defendant of felony murder for
a killing done by his accomplice during a felony but not in
furtherance of the felony. Absent such a case, and in light of
the alternative definition used in the Martin/Perry line of
cases, the cases suggesting that a defendant is liable for a
killing unrelated to the predicate felony and Pulido, we
cannot conclude that the California Supreme Court’s adoption
of the logical nexus rule was “unexpected and indefensible by
reference to existing law.” Lancaster, 133 S. Ct. at 1792
(alterations omitted). Accordingly, the California Supreme
Court’s decision “does not warrant disapprobation as an
unreasonable application of clearly established federal law.”
Id. at 1791 (citations, quotation marks and alterations
omitted).9


 9
  Cavitt argues that the pre-1995 cases in support of his position are both
more directly on-point and, on balance, more recently decided. If this case
were about predicting how the California Supreme Court might rule in
1995, we might have found this argument persuasive, but that is not the
                        CAVITT V. CULLEN                             19

                                 III.

    Finally, Cavitt argues that his constitutional rights were
violated by the trial court’s limiting instruction regarding
testimony that Mianta hated her stepmother, and by its
instructions on felony murder.

    Cavitt’s evidentiary arguments are derivative of his Bouie
claim, so – having rejected that claim – we reject these
arguments as well. Four of Mianta’s classmates testified that
Mianta hated her stepmother and wanted to kill her. The trial
court admitted this testimony with a limiting instruction that
it could be considered for purposes of considering the
robbery-murder and burglary-murder special circumstances
but not for purposes of Cavitt’s argument that Mianta killed
her stepmother for reasons unrelated to the robbery. If, as the
California Supreme Court held, Cavitt’s defense was not
valid, there was no harm in instructing that evidence could
not be considered in support of that defense.

    Cavitt also challenges the jury instructions. First, he
argues that, even if the “logical nexus” test could be
retroactively applied to him, the instructions did not require
the jury to find such a nexus. He makes the related argument
that whether a logical nexus existed was a question of fact
that was required to be found by a jury. Accepting Cavitt’s
premises for the sake of argument, we review for harmless
error. See California v. Roy, 519 U.S. 2, 6 (1996) (per
curiam) (holding that a federal habeas court reviews
erroneous or omitted jury instructions for harmless error).


posture here. We are not predicting; we are reviewing the court’s actual
assessment and articulation of its own jurisprudence, under AEDPA’s
highly deferential standards.
20                   CAVITT V. CULLEN

Under this standard, the test is whether an instructional error
“had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson,
507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)). As the California Supreme Court
explained:

       This is not a situation in which Mianta just
       happened to have shot and killed her lifelong
       enemy, whom she coincidentally spied
       through the window of the house during the
       burglary-robbery. Betty, the murder victim,
       was the intended target of the burglary-
       robbery. As part of those felonies, Betty was
       covered in a sheet, beaten, hog-tied with rope
       and tape, and left facedown on the bed. Her
       breathing was labored at the time defendants
       left. These acts either asphyxiated Betty in
       themselves or left her unable to resist
       Mianta’s murderous impulses. Thus, on this
       record, one could not say that the homicide
       was completely unrelated, other than the mere
       coincidence of time and place, to the burglary-
       robbery.

Cavitt, 91 P.3d at 233 (citation omitted). We agree that there
was a clear logical nexus between Cavitt’s crime and Betty’s
death, so failure to instruct on the required connection could
not have prejudiced Cavitt.

                        CONCLUSION

   Cavitt’s Bouie claim is not insubstantial. Ultimately, his
argument fails because we are not certain that, under
                     CAVITT V. CULLEN                      21

California law at the time of Cavitt’s crime, a robber was not
liable for a killing his co-felon committed during the robbery
for reasons independent of the robbery. Some California
cases suggested as much, but no California court had so held.
Absent such a case, the existence of contrary authority and
AEDPA’s highly deferential standard of review compel us to
reject Cavitt’s argument. Cavitt’s other arguments fail as
well. The logical nexus test is not unconstitutionally vague
as applied here and, because the test was clearly satisfied on
the facts here, the failure to instruct explicitly in terms of
“nexus” was, at most, harmless error. Accordingly, we
affirm.

   AFFIRMED.
