David Leon v. Tom Felker , 506 F. App'x 573 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 25 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DAVID LEON, No. 11-15350
Petitioner - Appellee, D.C. No. 3:07-cv-03954-MHP
v.
MEMORANDUM*
TOM FELKER, Warden,
Respondent - Appellant.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted January 14, 2013
San Francisco, California
Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.
The government appeals the district court’s partial grant of California state
prisoner Leon’s 28 U.S.C. § 2254 petition. Leon challenged his jury convictions
for second degree murder and discharging a firearm at an occupied motor vehicle,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and the district court vacated his murder conviction. We have jurisdiction under
28 U.S.C. § 2253(a) and we reverse.
Leon was charged in state court with murder and shooting at an occupied
vehicle. The jury was instructed on both first and second degree murder. For the
second degree murder charge, the court told the jury that Leon could be convicted
if they found that he unlawfully killed Hernandez with malice aforethought or
during the commission of a felony inherently dangerous to life, specifically,
shooting at an occupied vehicle. The jury convicted Leon of second degree murder
and shooting at an occupied vehicle, but did not indicate on which theory its
murder verdict rested.
Leon’s direct appeals in state court were unsuccessful and his state habeas
petitions were denied. The federal district court granted Leon’s habeas petition
and reversed his murder conviction. Its decision was based on its conclusion that
the felony-murder instruction violated Leon’s right to due process under the
Fourteenth Amendment. The court found that California law, as it existed at the
time of Leon’s trial, established that the crime of shooting at an occupied vehicle
merged with the homicide and could not be used for purposes of felony murder,
meaning that the jury should not have been instructed on this invalid theory.
According to the district court, this error was not harmless because the instructions
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“may have had a substantial influence on the conviction and there is a reasonable
probability that, but for the improper instructions, the result of the proceeding
would have been different.”
We review de novo the district court’s decision to grant a petition for a writ
of habeas corpus. Merolillo v. Yates, 663 F.3d 444, 453 (9th Cir. 2011). To
provide Leon with due process, the government was required to obtain a conviction
by proving beyond a reasonable doubt the elements of murder under either the
malice theory or the felony-murder theory. Leon argues that the jury should not
have been instructed on felony-murder because the underlying felony that he
committed, shooting at an occupied vehicle, should have merged with the
homicide, making the felony-murder rule inapplicable. The California Supreme
Court recognized in People v. Chun that prior to its decision–the period during
which Leon was convicted–the “state of the law regarding merger [was]
‘muddled.’” 45 Cal. 4th 1172, 1189 (2009). We do not reach the question of
whether Chun established a new rule and applies retroactively or if it merely
clarified the law as it existed at the time of Leon’s trial.
The evidence of implied malice presented at trial was overwhelming, and
even assuming the court’s instruction on the felony-murder theory was error, this
error was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993);
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California v. Roy, 519 U.S. 2, 4–5 (1996) (approving the harmless-error analysis
used by the dissent in Roy v. Gomez, 81 F.3d 863 (9th Cir. 1996) (en banc)
(Wallace, J. dissenting)). As the jury was instructed, implied malice can be found
when: (1) the killing resulted from a deliberate act, (2) the natural consequences of
the act are dangerous to human life, and (3) the act was deliberately performed
with knowledge of the danger to and with conscious disregard for human life. See
CAL. PENAL CODE § 188; People v. Watson, 30 Cal. 3d 290, 300 (1981). Leon
admitted to having intentionally fired his handgun, at very close range, into the
door of the car in which Hernandez was the passenger. The natural consequences
of Leon’s act were certainly dangerous to Hernandez’s life and Leon must have
disregarded this danger when he fired his pistol into the car. Leon’s statement that
he did not “want to shoot [Hernandez] in the head” does not negate the danger of
the act.
WE REVERSE.
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