                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              NOV 13 2014

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

JOHN LAM,                                        No. 12-16128

              Petitioner - Appellant,            D.C. No. 2:10-cv-00829-EFB

  v.
                                                 MEMORANDUM*
KATHLEEN DICKINSON,

              Respondent - Appellee.



JIMMY CHI COOC,                                  No. 12-16503

              Petitioner - Appellant,            D.C. No. 2:10-cv-00882-GEB-
                                                 EFB
  v.

ANTHONY HEDGPETH, Warden,

              Respondent-Appellee.



JOHN VAI DICH,                                   No. 12-16815

              Petitioner - Appellant,            D .C. No. 2:10-cv-00172-GEB-
                                                 EFB
  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
FRANCISCO JACQUEZ, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                 Edmund F. Brennan, Magistrate Judge, Presiding

                     Argued and Submitted September 9, 2014
                            San Francisco, California

Before: WALLACE, SCHROEDER, and OWENS, Circuit Judges.

      California state prisoners John Lam, Jimmy Cooc and John Dich appeal

from the district court’s denial of their petitions for habeas corpus challenging

California first-degree murder convictions. They contend they were denied due

process when the state trial court, in properly instructing the jury on the elements

of first-degree murder and lesser included offenses, mistakenly gave the jury an

additional partial instruction on felony murder.

      The felony murder instruction should not have been given. The instruction

appeared to permit a conviction for murder without a finding of malice and was in

violation of the California Supreme Court’s decision in People v. Ireland, 450 P.2d

580, 589–90 (Cal. 1969). Federal law requires the State to prove every element of

the offense with which the defendants were charged. See Middleton v. McNeil, 541

U.S. 433, 437 (2004).

                                          2
      The California Court of Appeal, however, reviewed all of the instructions

the jury received. The court concluded that there was no reasonable likelihood that

the jury, in reliance on the felony murder instruction, would have failed to make

the requisite finding as to malice. We may not grant habeas relief unless the state

court’s decision is an unreasonable application of the facts to the law or contrary to

clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d). The

California state court’s conclusion was neither.

      The errant felony murder instruction was not a complete instruction and

lacked any explanation of the elements that the jury would have been required to

find. The relevant jury instructions on murder, in contrast, explained the requisite

findings for each degree of murder, including at least eight references to the malice

requirement. Felony murder was neither charged nor argued to the jury. The

district court appropriately described the felony murder instruction as “nothing but

an orphaned charge that found no support in the other instructions with which the

jury had to grapple.”

      We need not separately address the government’s contention that petitioner

Cooc’s claim is procedurally defaulted. We also need not address the uncertified

issues raised by petitioner Dich, which do not raise viable federal claims.

      AFFIRMED.


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