Jordan v. Miller

Filing 37

ORDER DENYING HABEAS PETITION AND DENYING CERTIFICATE OF APPEALABILITY (Illston, Susan) (Filed on 7/9/2012)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA

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ANISSA JORDAN,

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No. C 10-5665 SI (pr)

Petitioner,

ORDER DENYING HABEAS
PETITION AND DENYING
CERTIFICATE OF APPEALABILITY

United States District Court
For the Northern District of California

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v.

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WALTER MILLER, Warden,
Respondent.

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INTRODUCTION

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Anissa Jordan, a prisoner of the State of California, filed this habeas action under 28

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U.S.C. § 2254 to challenge her state conviction. This matter is now before the court for

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consideration of the merits of the pro se habeas petition.1 For the reasons discussed below, the

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petition is denied.

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BACKGROUND
I.

The Crimes

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On December 2, 2005, the San Francisco County District Attorney charged Jordan and

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co-defendants Greshinal Green, Lenora Robinson, and MacDonald Grady with murder,

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attempted robbery, two counts of robbery, and conspiracy to commit robbery, along with

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enhancements for the use of a revolver during the commission of the crimes; Jordan, Green and

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The matter was reassigned to this court on September 28, 2011.

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Robinson were individually charged with possession of a firearm as ex-felons. Ans. Ex. E at 9-

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The California Court of Appeal set out the facts:

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The Robbery of Alston and Holmes

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At approximately 11:30 p.m. on Saturday, May 14, 2005, Almondo Alston and his
friend, Floyd Holmes, parked Alston’s car at the corner of Turk and Leavenworth Streets
in San Francisco. The two men planned to go to Club 181,2 located at Eddy and Taylor
Streets. Alston testified that they came with a woman he knew only as “Pooh.” Holmes
said that the two men drove to the area alone but recalled Alston talking to a woman
when they got out of the car.

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United States District Court
For the Northern District of California

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Alston testified that as they were walking down Leavenworth toward Eddy Street,
two women approached the men from behind, and one of the women asked them if they
had “E-tabs” or “X-tabs,” or “something like that.” Holmes described the woman who
asked “About E-tabs or something” as having blonde braids. Alston thought the woman
was asking for the drug “Ecstasy,” and either he or Holmes told her that they had none.
Alston described one of the women as dark-skinned, about five feet eight or nine inches
tall, and wearing a red, black, and green knitted “Rasta” hat. The other woman was lightskinned and approximately five feet ten inches to five feet eleven inches tall. Alston
identified the shorter, dark-skinned woman as appellate Robinson and the taller, lightskinned woman as appellant Jordan.
According to Alston, after he and Holmes left the two women and continued
walking, a man approached them from behind. Alston turned around, and a man whom
Alston later identified as Green pointed a black revolver at Alston’s chest area. Alston
described the gunman as having “nappy hair” or perhaps “little braids.” Green ordered
Alston to lie down. Alston complied because he “didn’t want to get shot,” and he lay face
down on the sidewalk. He then heard Green tell Holmes to get on the ground, and Holmes
did so. Pooh, who was walking ahead of Alston and Holmes and was almost at the end
of the block, was not involved in the incident.
Alston said one of the two women, Robinson, was directly involved in the robbery,
and he thought “the taller woman” (Jordan) was further up the street with Pooh. Alston
testified that Robinson told him and Holmes to stay down and not to move. She then went
through Alston’s pants and jacket and took his car keys and about $90 in cash. After
Robinson went through his pockets, she and Green “took off in [the] opposite direction”
back toward Turk Street.

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Holmes testified that he was robbed, but he was unable to recall what happened
in detail and said repeatedly that he “didn’t see nothing.” According to Holmes, a man
came up from behind him and put a gun to his head. Afraid for his life, he got down on
the ground. His keys, cell phone, and $93 were taken from him, and a chain was snatched
from around his neck. Holmes could not say whether the robbers went through his
pockets. He testified that he had no idea who had robbed him, but he recalled seeing a red
hat on one of the robbers as they left.

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According to the Alston testimony, after the incident he and Holmes headed back

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In the record, the establishment is referred to as “Suite 181.”
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to Alston’s car along with Pooh, who had rejoined them. They did not go to the police to
report the robbery. Five or ten minutes later, Alston heard sirens, and the group started
walking towards Eddy and Jones Streets.

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The Attempted Robbery and Murder of Garvin

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At approximately 11:45 p.m. on that same evening, Alexander Crispi was in a
parked “party bus” on Taylor Street that he and others had taken to Club 181. Crispi and
his companions had been drinking, and Crispi had consumed seven to nine “swigs” or
“shots” of Jack Daniels whiskey. Crispi said he was “a little bit buzzed” but that he could
“hold [his] own.”

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For the Northern District of California

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Crispi was looking out of the window of the bus and, from a distance of 25 to 30
feet, he saw a man walking north on Taylor and two men walking south on Taylor. One
of the two men walking south was wearing a light-colored, hooded jacket with a fur
collar, and the other, who had short dreadlocks or braids and facial hair, was wearing a
black, puffy jacket with a hood. Crispi identified the latter man as Green. Crispi testified
that “[i]t looked like the two gentlemen that were walking south were trying to block the
gentleman that was walking north.” The two men “kind of pushed the one gentleman
back as he was trying to walk up Taylor.” Crispi watched for perhaps five or ten seconds,
and he thought that an argument or “an altercation, maybe a fight, like a drug deal,” was
going on. He saw Green pull out a gun and shoot, from point-blank range, the man who
had been walking northbound. Crispi described the gun as a silver or black chrome
revolver. The victim, later identified as Garvin, fell to the ground after being shot, and
Crispi saw Green reach into Garvin’s left pocket before Green and his companion “took
off running south.” Crispi lost sight of them. He estimated that the entire incident took
between 10 and 30 seconds.
Gail Gatan also witnessed the attempted robbery and shooting of Garvin on the
evening of May 14, 2005. On that evening, Gatan, her fiancé, and some friends came to
San Francisco to celebrate Gatan’s birthday at Club 181. Gatan and her fiancé were in a
car waiting to pull into a parking lot on Taylor Street when Gatan looked out the window
and saw an altercation. There were three people across the street, “the victim and two
other people.” The victim was a African-American male with dreadlocks, and he was
arguing with two other people who “looked like two... black males.” Gatan testified that
one of the two other people was wearing a red hat or beanie with some hair sticking out,
and the other was “heavier set, a little more stockier,” with braided hair. At trial, Gatan
identified the person with the red hat that she had originally thought was a male as
Robinson and the second person as Green.
Gatan testified that she saw the three people shoving one another and then she
heard a single gunshot. After hearing the gunshot, Gatan saw the victim fall to the ground
and heard him “kind of groaning.” She saw the man she identified as Green kneel down
and grab the victim, “as if he was reaching down for something.” Robinson was farther
away from the victim and got a head start running down Taylor. Green followed
Robinson as the two ran toward Turk Street, where they turned, and Gatan lost sight of
them.3

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At trial, Gatan admitted to a number of inconsistencies in the various accounts she had
given of the shooting. She first gave a statement to police approximately three to three and one27 half hours after the incident. In the statement, Gatan incorrectly described the victim’s clothing
as the clothing worn by one of the perpetrators. She initially told the police that she had heard
28 “gunshots,” but at trial she testified she “just remember[ed] one.” She conceded that at different
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The Oshun Center, located at 101 Taylor Street, had security cameras working on
the evening of the incident. Videos taken by those cameras showed, at approximately
11:41 p.m., Green and Robinson walking to the intersection of Turk and Taylor Streets
and turning northbound onto Taylor. The video then showed Garvin, and later showed
Green and Robinson back at the intersection of Turk and Taylor “in kind of quickened
walk.” Shortly, after that, the video showed a police car crossing the intersection of Turk
and Taylor toward Green and Robinson as the two walked westbound on Turk Street. The
video then displayed a police car driving northbound on Taylor with lights and sirens on.

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An assistant medical examiner testified that Garvin died of a single gunshot that
entered his body at the left collarbone or clavicle and then lodged in his right chest cavity.
On the ground near Garvin’s body, police found a cell phone with a $5 bill clipped to it.

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The Arrest and Identification of Appellants

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Officer Theresa Sangiacomo testified that she was on patrol in the Tenderloin on
the evening of May 14, 2005. At about 11:45 p.m., Sangiacomo and her partner were
stopped at the intersection of Turk and Taylor Streets when she saw two people running
south on Taylor. The officer initially believed that the two people were African-American
males. The first was a taller male wearing a dark blue hooded sweatshirt, while the
second was shorter and wearing a “red floppy hat beret.”

United States District Court
For the Northern District of California

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Sangiacomo said that as the two individuals neared the corner, they appeared to
look at the officers in the police car and then slowed their pace to a fast walk. The two
people reached the corner of Turk and Taylor and turned westbound on Turk. When the
officers moved their car to get a better look at the two, police dispatch sent out a
broadcast that a person had been shot at 145 Taylor Street. The broadcast described the
suspects as two African-American males, and Sangiacomo specifically recalled that it
mentioned “a red hat, possibly a beret.”
Sangiacomo could no longer see the two people she had observed running and
believed that they were hiding, so she directed her partner to back their patrol car up. The
officers turned their spotlights on, and they saw a white, four-door Toyota Camry that had
been parked at the curb start to enter traffic. The officers turned on the patrol car’s
overhead lights and siren, and the Camry pulled over to the side of the street. Inside the
Camry, the officers saw the two people whom they had observed on foot - Green,

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times between her statement on the night of the incident and her later preliminary hearing
testimony she had variously described “the person in the red beanie” as sometimes smaller and
sometimes larger than the other perpetrator. In a second statement she gave police before the
preliminary hearing, Gatan told police that both of the suspects had taken things from the victim.
Gatan also admitted that she had testified differently on some matters at the preliminary
hearing. There, she had testified Green was the person who was wearing the red hat, while at
trial she testified that Robinson wore the red hat. At trial, she incorrectly claimed that at the
preliminary hearing she had identified Robinson as the person wearing the red had. Later in her
trial testimony, however, she admitted that at the preliminary hearing she had said that Robinson
was definitely not the person in the red had. She also admitted to her confusion over the gender
of the person wearing the red hat. Gatan testified at trial that she initially thought the two
individuals who fled the scene were men. She acknowledged that at the preliminary hearing she
had identified Grady as the person who kneeled over the victim and had identified Green as the
person in the red hat, because she had expected to identify two African-American males, and
Grady and Green were the only two African-American men in the courtroom wearing orange.
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wearing a sweatshirt, Robinson, in a red hat, as well as two others, later identified as
codefendant Grady and appellant Jordan. Robinson was in the front passenger seat, and
Green was behind her “slouched or hunched” in the back seat. Grady was driving the
Camry, and Jordan was seated behind him.

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United States District Court
For the Northern District of California

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Numerous other police cars arrived to assist the officers, and appellants were
ordered to get out of the car one at a time. The police then proceeded to conduct “cold
show” identifications involving appellants.4 Police brought Crispi to the intersection of
Turk and Jones. Crispi told police that the shooter had dreadlocks, and after being shown
four or five individuals, Crispi pointed out two suspects but identified only Green as
possibly being the man who shot Garvin.
Alston testified that about five or ten minutes after he and Holmes were robbed,
they heard sirens and he, Holmes, and Pooh began walking toward the sound of the
sirens. At Turk and Jones, they saw some people in a Camry and watched police pull
three of them out of the car. Alston said he and Holmes told the police they had been
robbed and “probably” told police “[w]e think these are the people who robbed us.”
According to Alston, he and Holmes stood together and identified Green, Jordan, and
Robinson as their robbers. For his part, Holmes recalled going to Jones and Turk after the
robbery, but he said he did not speak to the police, only Alston did.

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Sangiacomo testified that during the lineup procedures, she secured the Camry and
no one entered the car. Officer Nicholas Ferrando, who assisted with the felony traffic
stop, testified that he eventually searched the Camry after the passengers were removed.
Ferrando saw a handgun under the driver’s seat, but he did not touch it and only notified
his lieutenant of its presence. Officer Jason Garden, who also searched the Camry,
checked the passenger side of the car, looked under the seat, and “saw what appeared to
be definitely a gun, but possibly two guns....” When the police completed the field
identification procedures, the Camry was towed to a secure impoundment facility.

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Police Interview of Alston and Holmes

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The police interviewed Alston and Holmes at the Tenderloin police station.
According to the interviewing officer, Alston may have said that it was dark during the
robbery and initially said he did not recognize anyone, but he later said he had seen the
perpetrators in a car after the incident. Holmes told the police at least three times that one
of the robbers had put a gun to his head. Holmes also told the police that it was the person
in the red hat who had actually gone through his pockets and that the man with the gun
had told the person in the red hat, “Make sure you got everything.”5

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As explained at trial, in a “cold show” witnesses to the incident are brought by the police
to view certain individuals so that the witnesses can state whether or not the individuals were
involved in the crime. (See United States v. Diaz (N.D. Cal. Oct. 30, 2006, No. CR 05-0167
24 WHA) 2006 WL 3086732, p. *2 [term “cold show” denotes “an informal identification lineup
conducted in the field”].)
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In his trial testimony, Holmes said he could not recall telling the police that the armed
man had made this statement to the person in the red hat. Holmes also could not remember
telling the police that it was the girl with the red beret who had gone through his pockets and
27 taken his property, including his cell phone. He testified that he could not recall telling the police
that “the red hat girl, was like the main one” or that “it was the man [who] snatched the chain
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On May 25, 2005, the police interviewed Holmes again. When he was shown a
photograph of a red make-up bag belonging to Jordan, Holmes told the police it was the
bag that the “gold braids girl” had during the robbery. A photograph of appellant Jordan,
taken the evening of her arrest, showed her with gold braids.

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Search of Appellants and Recovery of Evidence
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The police searched appellants and their property. In Green’s possession, the
police found Holmes’s keys, a “Reportee Follow-up” form belonging to Holmes, other
items, and $3.05 in cash. In a purse that Jordan had acknowledged was hers, police found
a number of items, including Holmes’s chain, the clasp of which was broken, as well as
four gold rings, three silver earrings, and two other chains. Robinson was found with
$342.18 and a red hat.

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In the Camry, police found a Smith & Wesson .38-caliber special revolver under
the rear of the driver’s eat. The Smith & Wesson contained four live .38 caliber
cartridges, one fired casing, and one empty chamber. A police inspector testified that
because the gun’s hammer was resting on the empty cartridge, he could determine that
the last thing that had happened with the gun before it was found was that a bullet had
been fired from it. Under the front passenger seat of the Camry, the inspector found a
Beretta .22 caliber semiautomatic pistol with three live cartridges in its magazine. Also
in the car were a purse, clipboard, and two cell phones, one of which belonged to Holmes.

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United States District Court
For the Northern District of California

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Testing of Physical Evidence

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The police swabbed and tested the guns and cell phones for the presence of DNA
evidence. Testing revealed that the .38 caliber Smith & Wesson revolver had DNA from
two individuals on the handles, consistent with Green and with Jordan. The two
contributors could not be distinguished from each other. The DNA profile on the Smith
& Wesson occurred in approximately one in 352,000 Caucasians in the United States, one
in 186,000 African-Americans, one in 304,000 California Hispanics, and one in 1.7
million Asians.

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The Beretta also had DNA evidence on it, and Robinson was identified as a
potential source. The DNA profile from the Beretta swab occurred in approximately one
in 596 trillion Caucasians in the United States, one in 14 trillion African-Americans, one
in 40 trillion California Hispanics, and one in 1 quadrillion Asians.

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Ballistics testing of the Smith & Wesson determined that it was the weapon used
to kill Garvin.

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Gun residue tests performed on appellants and Grady yielded no residue. Gunshot
residue bags were placed on Green’s hands on three occasions, but Green succeeded in
tearing the bags at least twice.

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Cal. Ct. App. Opinion, ¶. 2-9 (footnotes renumbered); Ans. Ex. E.

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II.

Procedural History
On June 28, 2006, Jordan was acquitted of attempted robbery, but found guilty of first

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degree murder (Cal. Penal Code § 187),6 two counts of robbery (§ 212.5(c)), one count of

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conspiracy to commit robbery (§ 182(a)(1)), and one count of possession of a firearm after

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having been previously convicted of a felony (§ 12021(a)).7 The jury also found true the

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allegations that Jordan was armed with a revolver during the commission of the murder and

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robberies (§ 12022(a)(1)). Ans. Ex. B at 2474-2511.

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In a bifurcated proceeding, the trial court found true an allegation that Jordan had served

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a prior prison term (§ 667.5(b)). Ans. Ex. B at 2534-35. On December 11, 2006, Jordan was

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sentenced to 27 years to life in state prison. Id. at 2560-64.
On August 26, 2009, Jordan’s conviction was affirmed by the California Court of Appeal.

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United States District Court
For the Northern District of California

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The state appellate court also denied Jordan’s petition for a writ of habeas corpus. On December

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2, 2009, her petitions for review of the direct appeal and habeas petition were denied by the

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California Supreme Court.

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Jordan then filed this action on December 13, 2010. In her petition, Jordan asserted eight

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claims that the court found cognizable and ordered respondent to answer: 1) there was

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insufficient evidence to support the first degree murder conviction; 2) the trial court gave

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inadequate jury instructions with respect to the conspiracy to commit robbery charge; 3) the jury

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instructions with respect to co-conspirator liability in felony murder were misleading and

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ambiguous; 4) the jury instructions on the “natural and probable consequences theory of

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liability” were erroneous; 5) the trial court erred when it refused to give instruction that jurors

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must agree unanimously “on all facts required for co-conspirator liability in felony-murder”; 6)

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the trial court erred when it refused to instruct on defense theory; 7) ineffective assistance of

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counsel for failure to make sufficient argument on jury instructions; and 8) ineffective assistance

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of counsel for failure to object to jury instructions. Pet. at 6-6B. The court issued an order to

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show cause on April 29, 2011.

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Unless otherwise specified, further statutory references are to the California Penal Code.

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Defendant Grady was acquitted of all charges, and defendants Green and Robinson were
convicted along with Jordan on the murder, robbery, conspiracy, and firearms possession counts.
Convicted defendants filed a joint appeal.
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Respondent filed an answer to the petition. Jordan filed a traverse. The case is now ready
for review on the merits.

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JURISDICTION AND VENUE

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This court has subject matter jurisdiction over this habeas action for relief under 28

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U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged

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action concerns a conviction obtained in San Francisco County, which is in this district. See 28

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U.S.C. §§ 84, 2241(d).

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United States District Court
For the Northern District of California

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EXHAUSTION

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Prisoners in state custody who wish to challenge collaterally in federal habeas

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proceedings either the fact or length of their confinement are required first to exhaust state

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judicial remedies, either on direct appeal or through collateral proceedings, by presenting the

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highest state court available with a fair opportunity to rule on the merits of each and every claim

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they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute that

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state court remedies were exhausted for the claims asserted in the petition.

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STANDARD OF REVIEW

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This court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The

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petition may not be granted with respect to any claim that was adjudicated on the merits in state

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court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was

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contrary to, or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or (2) resulted in a decision that was

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based on an unreasonable determination of the facts in light of the evidence presented in the

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State court proceeding.” 28 U.S.C. § 2254(d).

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court
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arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or

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if the state court decides a case differently than [the] Court has on a set of materially

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indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).
“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ

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if the state court identifies the correct governing legal principle from [the] Court’s decision but

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unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal

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habeas court may not issue the writ simply because that court concludes in its independent

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judgment that the relevant state-court decision applied clearly established federal law

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erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A

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United States District Court
For the Northern District of California

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federal habeas court making the “unreasonable application” inquiry should ask whether the state

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court’s application of clearly established federal law was “objectively unreasonable.” Id. at 409.

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DISCUSSION
I.

Due process claim based on insufficient evidence

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Jordan claims that there was insufficient evidence to support the first degree murder

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conviction based on the theories of liability presented by the prosecution. Jordan claims that she

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“was not the perpetrator of the shooting, which allegedly occurred during an attempted robbery,”

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that she “was blocks away in a car,” and that there “was no substantial evidence that she

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committed a requisite act or had the intents required for aider and abettor or co-conspirator

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liability in first degree murder.” Pet. at 6.

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The California Court of Appeal described the background of this claim as follows:

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Both Jordan and Robinson contend the first-degree murder verdicts against them
are not supported by substantial evidence. Although both appellants base their claims on
the alleged insufficiency of the evidence, their arguments differ. We will outline each
appellant’s particular arguments and analyze them separately.

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A.

Standard of Review

In reviewing appellants’ challenges to the sufficiency of the evidence, we do not
determine the facts ourselves. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) Instead,
our task is to examine the whole record in the light most favorable to the judgment and
to discern “whether it discloses substantial evidence - evidence that is reasonable,
credible and of solid value - such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citations.]” (Ibid.) Thus, “‘[t]he test on appeal is
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whether substantial evidence supports the conclusion of the trier of fact, not whether the
evidence proves guilt beyond a reasonable doubt. [Citation omitted.] The appellate court
must determine whether a reasonable trier of fact could have found [that] the prosecution
sustained its burden of proving the defendant guilty beyond a reasonable doubt.’” (People
v. Johnson, supra, 26 Cal.3d at p. 576.) The standard of review is the same in cases in
which the People rely primarily on circumstantial evidence. (People v. Guerra, supra, at
p. 1129; People v. Bean (1998) 46 Cal.3d 919, 932.) If we determine that a rational jury
could find the essential elements of the crime proven beyond a reasonable doubt, this
satisfies the due process clauses of both the federal and California Constitution. (People
v. Memro (1995) 11 Cal.4th 786, 861.)

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In conducting our review, we must bear in mind that it is the jury’s role to
determine the credibility of witnesses and the truth or falsity of the facts upon which a
determination depends. (People v. Barnes (1986) 42 Cal.3d 284, 303.) We may not
substitute our judgment for that of the jury, and if the evidence reasonably supports the
jury’s findings, we may not reverse the judgment merely because we believe that the
evidence might also support a contrary finding. (See People v. Ceja (1993) 4 Cal.4th
1134, 1139.) “Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which suggests guilt
and the other innocence [citations], it is the jury, not the appellate court which must be
convinced of the defendant’s guilt beyond a reasonable doubt.” (People v. Bean, supra,
46 Cal.3d at ¶. 932-933.)
B.

Jordan

Jordan asserts that the trial court instructed the jury on only two theories of
liability for first-degree murder - “an aiding and abetting, natural and probable
consequences theory and coconspirator/aiding and abetting liability for felony murder.”
She claims first that there is insufficient evidence from which a jury could conclude that
Green committed a premeditated and deliberate murder of Garvin. Jordan then argues that
the People failed to present sufficient evidence of her intent to sustain a conviction under
either a coconspirator liability theory or an aiding and abetting theory. She concedes that
the evidence “at least arguably raises an inference that [she] had knowledge that Green
was most likely going to attempt to commit another robbery after the robbery of Alston
and Holmes,” but contends that there was no substantial evidence that she intended to
agree that Green commit additional robberies and intended that her coconspirators
commit more robberies. Jordan contends “the prosecution had to prove that [she] either
agreed to commit an additional robbery after the Alston/Holmes robbery and intended
that it be committed (for coconspirator liability) or had knowledge that Green was going
to commit another robbery and intended to aid and abet it (for aiding and abetting
liability).” In her view, the evidence does not suffice to support a finding of the requisite
intent.
Cal. Ct. App. Opinion, ¶. 35-36.
The California Court of Appeal rejected Jordan’s argument that there was insufficient
evidence to support the first degree murder conviction:
Contrary to Jordan’s assertions, we conclude there was substantial evidence to
support a finding that she was a member of a conspiracy to commit robberies, including
the attempted robbery of Garvin, and that she intended that one or more members of the
conspiracy commit the robbery of Garvin. On the evening of May 14, 2005, a man and
two women robbed Alston and Holmes. The robbery victims testified that as they were
walking towards Eddy Street on Leavenworth in San Francisco, two women, one of
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For the Northern District of California

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whom had gold braids, walked up and asked for “E-tabs or something like that.” Alston
identified Jordan as one of the women, and a photo of Jordan taken after her arrest
showed that she had gold braids. The other woman was identified as Robinson, and the
man as Green. During that robbery, Holmes’s chain was stolen, and it was later found in
Jordan’s handbag when she was arrested. The attempted robbery and murder of Garvin
occurred at Taylor Street and Eddy Street within approximately fifteen minutes, and
approximately two blocks, of the robbery of Alston and Holmes. Jordan was apprehended
moments later, within a block of the Garvin shooting, in a vehicle fleeing the scene and
in the company of the two individuals (Green and Robinson) identified in the Garvin
confrontation. The gun used to rob Alston and Holmes and to kill Garvin was found
under the driver’s seat of the Camry in front of where Jordan was seated, and DNA found
on the gun matched Jordan’s.
From this evidence the jury could certainly have concluded that Jordan was part
of a group which had conspired to commit robberies on the evening of May 14, 2005.
(See People v. Jones (1986) Cal.App.3d 509, 517 [proof of assent to conspiracy must
usually be inferred from facts and circumstances].) She participated directly in the
robbery of Alston and Holmes, helping to divert their attention so that Green could
approach the victims unnoticed. The cooperation between Jordan and her two
confederates permitted the jury to infer that the robbery was preplanned. Because Green
and Robinson then immediately set out to commit another robbery while Jordan returned
to the getaway car with some of the stolen property, the jury could reasonably conclude
that Jordan was not only aware that another robbery would be committed, but that she
agreed that it would be committed and intended that her accomplices commit it. The
commission of multiple offenses is in no way inconsistent with the existence of a single
overall agreement. (People v. Vargas (2001) 91 Cal.App.4th 506, 553-554.) As the gun
used to kill Garvin was found under the car seat in front of Jordan and had DNA
matching hers on it, the jury could have concluded that she had agreed to conceal the
weapon as the group attempted to escape.8
Cal. Ct. App. Opinion, ¶. 36-38.

17

The Due Process Clause “protects the accused against conviction except upon proof

18

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

19

charged.” In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the

20

evidence in support of his state conviction cannot be fairly characterized as sufficient to have

21

led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional

22

claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to

23

federal habeas relief, see id. at 324. See, e.g., Wigglesworth v. Oregon, 49 F.3d 578, 582 (9th

24

Cir. 1995) (writ granted where Oregon procedure of allowing lab reports regarding drug analyses

25
26
8

Jordan’s arguments in opposition all view the evidence in a light favorable to her. We
are required, however, to view the evidence in the light most favorable to the verdicts. (E.g.,
People v. Guerra, supra, 37 Cal.4th at p. 1129.) For purposes of our review, it does not matter
28 that other, perhaps equally reasonable conclusions might be drawn from the evidence. (See
People v. Bean, supra, 46 Cal.3d at p. 933.) (Original footnote renumbered.)
27

11

1

to be admitted into evidence without authenticating testimony relieved state of its burden to

2

prove beyond reasonable doubt all elements of crime charged); Martineau v. Angelone, 25 F.3d

3

734, 739-43 (9th Cir. 1994) (writ granted where evidence found insufficient to convict

4

defendants of child abuse based on delay in seeking medical care for child).
A federal court reviewing collaterally a state court conviction, as in the case at bar, does

6

not determine whether it is satisfied that the evidence established guilt beyond a reasonable

7

doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert. denied, 510 U.S. 843 (1993). The

8

federal court “determines only whether, ‘after viewing the evidence in the light most favorable

9

to the prosecution, any rational trier of fact could have found the essential elements of the crime

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For the Northern District of California

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beyond a reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at 319). Only if no rational trier

11

of fact could have found proof of guilt beyond a reasonable doubt, has there been a due process

12

violation. Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338; Miller v. Stagner, 757 F.2d 988,

13

992-93 (9th Cir.), amended, 768 F.2d 1090 (9th Cir. 1985), cert. denied, 475 U.S. 1048, and cert.

14

denied, 475 U.S. 1049 (1986); Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir.), cert. denied,

15

469 U.S. 838 (1984).

16

Viewing the evidence here in the light most favorable to the prosecution, it is clear that

17

a rational trier of fact could have found that Jordan had the intent required to be liable as a co-

18

conspirator. The state court found that there was “substantial evidence” to support the

19

conviction: Jordan was identified as one of three people who robbed Alston and Holmes on the

20

evening of May 25, 2005; Holmes’s stolen chain was found in Jordan’s handbag when she was

21

arrested; the attempted robbery and murder of Garvin occurred within fifteen minutes and

22

approximately two blocks of the robbery of Alston and Holmes; Jordan was apprehended

23

moments later, within a block of the Garvin shooting in a vehicle fleeing the scene; she was in

24

the company of the Green and Robinson who were identified in the Garvin confrontation; the

25

gun used in the robberies and murder was found under the driver’s seat of the Camry in front of

26

where Jordan was seated; and DNA found on the gun matched Jordan’s. See supra at 11.

27

Furthermore, circumstantial evidence and inferences drawn from that evidence may be sufficient

28

to sustain a conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). Mere suspicion
12

and speculation cannot support logical inferences, however. Id.9 Here, the state court found that

2

there were permissible inferences which could lead a rational jury to conclude that Jordan was

3

part of a group of people who conspired to commit multiple robberies during a single night: the

4

fact that she participated directly in the robbery of Alston and Holmes by helping to divert their

5

attention so that Green could approach the victims unnoticed permitted the jury to infer that the

6

robbery was preplanned. See supra at 11. The state court also concluded that “because Green

7

and Robinson then immediately set out to commit another robbery while Jordan returned to the

8

getaway car with some of the stolen property, the jury could reasonably conclude that Jordan

9

was not only aware that another robbery would be committed, but that she agreed that it would

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For the Northern District of California

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be committed and intended that her accomplices commit it.” Id. Jordan’s assertions that she was

11

not the shooter and that she was not present during the shooting are irrelevant with respect to the

12

jury’s finding that she was part of a conspiracy to commit multiple robberies based on more than

13

mere suspicion or speculation; the jury reasonably inferred that Jordan knew and agreed to Green

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and Robinson committing another robbery by her involvement in the first robbery, and then her

15

waiting in the getaway car and concealing the murder weapon after the second robbery. Id.

16

Jordan is mistaken with respect to her belief that Jackson requires the evidence show guilt

17

to a “near certitude.” Doc. 2 at 9. On the contrary, only if no rational trier of fact could have

18

found proof of guilt beyond a reasonable doubt, has there been a due process violation. Jackson,

19

443 U.S. at 324 (emphasis added). As respondent correctly points out, the court need only be

20

convinced that “it was objectively reasonable for the state court to conclude that a rational jury

21

could have concluded, based on the evidence, that [Jordan] either agreed to commit an additional

22

robbery after the Alston/Holmes robbery and intended that it be committed (for coconspirator

23

liability) or had knowledge that Green was going to commit another robbery and intended to aid

24
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9

Compare United States v. Begay, No 673 F.3d 1038, 1043-1044 (9th Cir. 2011) (en
banc) (evidence about defendant’s activities and the manner of killing allowed inference of
premeditation and is sufficient “because it is ‘supported by a chain of logic,’ which is all that is
27 required to distinguish reasonable inference from speculation”) with Juan H. v. Allen, 408 F.3d
1262, 1278-79 (9th Cir. 2005) (granting writ where, after resolving all conflicting factual
28 inferences in favor of prosecution, only speculation supported petitioner’s conviction for first
degree murder under a theory of aiding and abetting).
26

13

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and abet it (for aiding and abetting liability).”
Jordan also incorrectly attempts to present the evidence in a light most favorable to her

3

defense. Review on habeas requires the federal court to view the evidence “in the light most

4

favorable to the prosecution.” Payne, 982 F.2d at 338 (quoting Jackson, 443 U.S. at 319). This

5

includes resolving conflicting inferences in favor of the prosecution, Jackson, 443 U.S. at 326.10

6

In fact, all of the evidence admitted at trial must be viewed in light most favorable to the

7

prosecution. See McDaniel v. Brown, 130 S. Ct. 665, 673-74 (2010) (emphasis added) (finding

8

9th Circuit erred by failing to consider all of the evidence in light most favorable to the

9

prosecution when it resolved inconsistencies in testimony in favor of petitioner); see also

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For the Northern District of California

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LaMere v. Slaughter, 458 F.3d 878, 882 (9th Cir. 2006) (in a case where both sides have

11

presented evidence, a habeas court need not confine its analysis to evidence presented by the

12

state in its case-in-chief).

13

As is true in state court, “it does not matter that other, perhaps equally reasonable

14

conclusions might be drawn from the evidence,” see supra at 12, n. 8, as long as the evidence

15

supports a rational jury’s finding of guilt beyond a reasonable doubt. Payne, 982 F.2d at 338.

16

It does so here. The California Court of Appeal’s rejection of Jordan’s due process claim

17

alleging insufficient evidence in support of the first degree murder conviction was not contrary

18

to, or an unreasonable application of, clearly established federal law.

19

Accordingly, Jordan is not entitled to habeas relief based on this claim.

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II.

Due process claims based on alleged errors in jury instructions
Jordan’s several challenges to the jury instructions were summarized by the Court of

Appeal:
Jordan asserts that: (1) the trial court erred by instructing the jury on a legally
inadequate theory of felony murder; (2) even if the instructions did not unambiguously
convey a legally inadequate theory of felony murder, they were misleading and

26
27

10

The court may not substitute its judgment for that of the jury. See Cavazos v. Smith,
132 S.Ct. 2, 3-4 (2011) (finding 9th Circuit erred by substituting its judgment for that of
28 California jury on the question whether the prosecution’s or defense’s expert witnesses more
persuasively explained the cause of death).
14

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ambiguous with regard to whether appellants must have had the intent required as
conconspirators in the Garvin robbery and to have been guilty of that robbery to be
convicted of felony murder; (3) the trial court erred by refusing to instruct the jurors that
they had to agree unanimously that appellants specifically conspired to commit the
attempted robbery of Garvin to be found guilty of felony murders; (4) the trial court erred
by failing to instruct the jurors sua sponte that appellants could not be convicted of felony
murder unless they possessed the requisite intent and were guilty of the attempted robbery
of Garvin; and (5) the trial court erred in giving CALCRIM No. 417 (Jan. 2006 ed.)
because it may have misled the jury into thinking that the natural and probable
consequences doctrine played a role in coconspirator liability for statutory felony murder.

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For the Northern District of California

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Cal. Ct. App. Opinion, ¶. 23-24.
To obtain federal collateral relief for errors in the jury charge, a petitioner must show that
the ailing instruction by itself so infected the entire trial that the resulting conviction violates due
process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). The instruction may not be judged in
artificial isolation, but must be considered in the context of the instructions as a whole and the
trial record. See id. In reviewing a faulty instruction, the court inquires whether there is a
“reasonable likelihood” that the jury has applied the challenged instruction in a way that violates
the Constitution. Id. at 72, n.4.
The omission of an instruction is less likely to be prejudicial than a misstatement of the
law. See Walker v. Endell, 850 F.2d 470, 475-76 (9th Cir. 1987) (citing Henderson v. Kibbe,
431 U.S. 145, 155 (1977)). Thus, a habeas petitioner whose claim involves a failure to give a
particular instruction bears an “‘especially heavy burden.’” Villafuerte v. Stewart, 111 F.3d 616,
624 (9th Cir. 1997) (quoting Henderson, 431 U.S. at 155).
Even if there is an instructional error, a habeas petitioner is not entitled to relief unless
the error “‘had substantial and injurious effect or influence in determining the jury’s verdict.’”
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)(quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)). In other words, state prisoners seeking federal habeas relief may obtain
plenary review of constitutional claims of trial error, but are not entitled to habeas relief unless
the error resulted in “actual prejudice.” Id. (citation omitted). If the court is convinced that the
error did not influence the jury, or had but very slight effect, the verdict and the judgment should
stand. O’Neal v. McAninch, 513 U.S. 432, 437 (1995). Further, federal court’s review of a
claim of instructional error is subject to a highly deferential standard of review. Masoner v.

15

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Thurman, 996 F.2d 1003, 1006 (9th Cir. 1993).

2

A.

4

Jordan first claims that the jury instruction with respect to the conspiracy to commit

5

robbery charge was inadequate because “the modified version of CALCRIM 540B given by the

6

trial court did not inform the jurors of all findings they must make to convict petitioner for first

7

degree murder as a co-conspirator in felony murder.” Doc. 2 at 10. Specifically, Jordan

8

contends that the instructions did not require the jury to find that Jordan agreed to the attempted

9

robbery of Garvin and that she specifically intended that the co-conspirators commit that

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For the Northern District of California

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Failure to include all necessary elements

robbery. Instead, the jury was required to make findings with respect to Jordan’s intent to

11

commit the earlier robbery of Alston and Holmes to find her guilty of felony murder as a co-

12

conspirator.

13

According to the trial record, the prosecution set forth two theories of first degree murder

14

in this case: 1) malice aforethought as to the shooter, and aiding and abetting as to the co-

15

participants; and 2) felony murder. Ans., Ex. B at 2194. There is no dispute that the evidence

16

established that codefendant Green shot and killed Garvin. With respect to Jordan and

17

codefendants Grady and Robinson, one of the instructions the trial court gave the jury on first

18

degree felony murder where a “coparticipant allegedly committed the fatal act” was a modified

19

version of CALCRIM 540B, which made clear to the jury that there existed three theories of

20

felony-murder liability for the non-shooters: (1) direct participation in the attempted robbery;

21

(2) aiding and abetting the attempted robbery; and (3) conspiracy to rob. Id. at 2202-04.

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According to respondent, California law provides that a non-shooter is not guilty under

23

the conspiracy to rob theory of felony murder liability unless she conspired to commit the

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predicate crime - one of the felonies listed in California Penal Code § 189 (like robbery) during

25

which the commission of the killing occurred - and intended that one or more of the members

26

of the conspiracy commit that predicate crime. Ans. at 13-14 (citing People v. Pulido, 15 Cal.4th

27

713, 723 (1997) (“Our cases establishing the complicity of a nonkiller in a felony murder have

28

thus uniformly required, at a minimum, that the accomplice have been, at the time of the killing,
16

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a conspirator or aider and abetter to the [section 189] felony”; 1 Witkins & Epstein, Cal.

2

Criminal Law, Crimes against the Person, § 136, p. 751 (3d ed. 2000) (the felony murder

3

doctrine is “frequently involved in conspiracy cases; e.g., all members of a conspiracy to commit

4

robbery or burglary are guilty of murder if one of them kills in the commission of the crime”]).)

5

Jordan claims that the “predicate crime” relevant to the conspiracy to rob theory was the

6

attempted robbery of Garvin rather than the earlier robbery of Alston and Holmes, and that

7

CALCRIM 540B, as given in this case, failed to require the jury to determine whether she

8

specifically conspired to commit the attempted Garvin robbery and that she intended for her

9

coconspirators to do so in order to find her guilty of felony murder.

United States District Court
For the Northern District of California

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11

The California Court of Appeal outlined the background of this jury instruction claim, and
rejected it, as follows:

12

A.

13

19

When we review a claim of instructional error, “we must consider the jury
instructions as a whole, and not judge a single jury instruction in artificial isolation out
of the context of the charge and the entire trial record.” (People v. Dieguez (2001) 89
Cal.App.4th 266, 276.) Where, as here, an appellant claims that instructions are deficient,
“[w]hat is crucial... is the meaning that the instructions communicated to the jury. If that
meaning was not objectionable, the instructions cannot be deemed erroneous. [Citation.]”
(People v. Benson (1990) 52 Cal.3d 754, 801.) We determine the correctness of jury
instructions from the trial court’s entire charge, and we must also consider the arguments
of counsel in assessing the probable impact of the instructions on the jury. (People v.
Young (2005) 34 Cal.4th 1149, 1202.) Thus, the ultimate question is “whether there is a
‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the
instructions given, the entire record of [the] trial and the arguments of counsel.
[Citations.]” (People v. Dieguez, supra, at p. 276-77.)

20

B.

21

An understanding of the claimed instructional error requires us to set forth at some
length the instructions at issue. In addition, we recount some of the arguments of counsel
that bear on the claimed instructional error.

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Standard of Review

The Instructions and Arguments of Counsel

The trial counsel informed the jury that appellants and their codefendant, Grady,
were “being prosecuted for murder under two theories: [¶] One, malice aforethought as
to the perpetrator, and aiding and abetting as to the co-participants; and second theory,
felony murder.” As set forth in the factual background, the evidence showed that Green
shot and killed Garvin, and that Robinson was physically present and participated directly
in the attempted robbery. There was no evidence, and the prosecution did not argue, that
Grady and Jordan were personally present at the time of the Garvin incident. As to
Jordan, Robinson, and codefendant Grady, the trial court gave the jury a modified version
of CALCRIM No. 540B (Jan. 2006 ed.) concerning first-degree felony murder where a
“coparticipant allegedly committed the fatal act.” The court instructed the jury:

17

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“Defendants may also be guilty of murder under a theory of felony murder, even
if another person did the act that resulted in the death. I will call the other person the
perpetrator.
“To prove that a defendant is guilty of first-degree murder under this theory, the
People must prove that:

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“1. A defendant attempted to commit robbery or aided and abetted the
commission of attempted robbery, or was a member of a conspiracy to commit robbery;
“2.
A defendant intended to commit robbery, or intended to aid and abet the
commission of a robbery, or intended that one or more of the members of the conspiracy
commit robbery;
“3.
If the defendant did not personally commit attempted robbery, then a
perpetrator personally committed attempted robbery; and
“4.
While committing attempted robbery, the perpetrator did an act that caused
the death of another person;
“5.
There was a logical connection between the act causing the death and the
attempted robbery. The connection between the fatal act and the attempted robbery must
involve more than just their occurrence at the same time and place.
“A person may be guilty of felony murder even if the killing was unintentional,
accidental, or negligent.
“To decide whether a defendant committed attempted robbery, a violation of Penal
Code Section 664/212.5(c), please refer to the separate instructions that I have given you
on that crime. You must apply those instructions when you decide whether the People
have proved first-degree murder under this theory of felony murder.
“To decide whether a defendant aided and abetted the commission of robbery,
please refer to the separate instructions that I have given you on aiding and abetting a
crime. You must apply those instructions when you decide whether the People have
proved first-degree murder under this theory of felony murder.
“To decide whether a defendant was a member of a conspiracy to commit robbery
before the time of the act causing death, please refer to the instructions that I have given
you on conspiracy. You must apply those instructions when you decide whether the
People have proved first-degree murder under this theory of felony murder. However,
you cannot convict a single – let me say again. However, you cannot convict a single
defendant of first-degree felony murder on a theory of participation in a conspiracy to
commit robbery unless you have found two or more defendants guilty of such a
conspiracy.
“The defendant must have intended to commit robbery or aided and abetted the
commission of robbery or have been a member of a conspiracy to commit robbery before
or at the time of the act causing death.

27

“If you find that a defendant did not aid and abet or did not enter into a conspiracy
to commit robbery until after the act which caused death of another person, then you must
find such defendant not guilty of murder and not guilty of attempted robbery.

28

“It is not required that a defendant be present when the act causing death
18

occurs.”11

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For the Northern District of California

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The trial court explained that “[t]he defendants are charged in Count Five with
conspiracy to commit robbery.” Having told the jury to refer to the instructions on
conspiracy to determine “whether a defendant was a member of a conspiracy to commit
robbery before the time of the act causing death,” the trial court also gave the jury a
slightly modified version of CALCRIM No. 415 (Jan. 2006 ed.). It instructed the jury:
“To prove that a defendant is guilty of this crime [conspiracy], the People must prove
that: [¶] 1. A defendant intended to agree and did agree with one or more of the other
defendants to commit robbery; [¶] 2. At 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 commit robbery; [¶] 3. One of the defendants, or both of them, or all of them,
committed at least one of the alleged overt acts to accomplish robbery; and [¶] 4. At least
one of the overt acts was committed in California.” The jury was further instructed that
“An overt act is an act by one or more members of the conspiracy that is done to help
accomplish the agreed-upon crime.” The court went on to list seven overt acts alleged in
the information, the last two of which were “Greshinal Green shot Carlos Garvin with the
Smith & Wesson .38 caliber revolver in front of 145 Taylor Street on May 14th, 2005”
and “Greshinal Green reached into Carlos Garvin’s pockets in front of 145 Taylor Street
on May 14th, 2005.”

20

In closing argument, the prosecutor stressed that the defendants were engaged in
a single conspiracy to commit robberies, a conspiracy that included the robberies of
Alston, Holmes, and Garvin.12 For example, after discussing the robberies of Alston and
Holmes, the prosecutor told the jury: “You go forward in our conspiracy because it
doesn’t stop, the conspiracy to rob these targets in San Francisco doesn’t stop. Because
we know, based on our evidence presented in our courtroom, that Greshinal Green and
Lenora Robinson approached Carlos Garvin, prevented him from leaving,... revolver is
pulled, the very same revolver that was used on Mr. Alston and Mr. Holmes. [¶]... [¶]
How do we know that the robbery conspiracy was continuing? Because Mr. Green rifled
Carlos’ pockets.” The prosecutor also referred to “this overall conspiracy [to] commit
robberies here in San Francisco that night....” Later in his closing, he called it “a
conspiracy to rob folks in San Francisco” and specifically argued that the Garvin
attempted robbery was part of that conspiracy. After discussing the attempted robbery and
murder of Garvin, the prosecutor argued pointedly to the jury that Jordan was a member
of the conspiracy at the time Garvin was killed: “There was no doubt that still part of the
conspiracy, Anissa Jordan was in Mr. Grady’s car when Carlos Garvin was shot. Why
is that important? Because only two folks’ DNA is on this gun, Anissa Jordan, Greshinal
Green, nobody else.” (Italics added.)

21

C.

22

A defendant may only be guilty of felony murder under a coconspirator liability
theory if the defendant conspired to commit the predicate felony during which the killing
occurred and intended that one or more members of the conspiracy commit the predicate
felony. (People v. Dominguez (2006) 39 Cal.4th 1141, 1158-1159; People v. Pulido
(1997) 15 Cal.4th 713, 723.) Jordan contends that CALCRIM No. 540B did not explain
to the jury that conviction for felony murder under a coconspirator liability theory
required an intent to commit the underlying felony (here, the attempted robbery of

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19

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The Instructions Were Neither Inadequate Nor Misleading

26
27

11

28

12

As Jordan noted in her brief, her trial counsel made no objection to this instruction.

Jordan acknowledged in her opening brief that “the prosecutor argued that a general
conspiracy to commit robbery was the factual underpinning for the murder charge....”
19

1

Garvin) and that no other instructions filled that gap.

2

We disagree. As the United States Supreme Court has observed, “[j]urors do not
sit in solitary isolation booths parsing instructions for subtle shades of meaning in the
same way that lawyers might. Differences among them in interpretation of instructions
may be thrashed out in the deliberative process, with commonsense understanding of the
instructions in the light of all that has taken place at the trial likely to prevail over
technical hairsplitting.” (Boyde v. California (1990) 494 U.S. 370, 380-81.) Reviewing
the instructions given in the context of the entire trial record and the arguments of counsel
(People v. Dieguez, supra, 89 Cal.App.4th at p. 576), we conclude that there is no
reasonable likelihood that the jurors would have concluded that they could convict Jordan
of felony murder under a coconspirator liability theory without finding that she was part
of a conspiracy to commit the attempted robbery of Garvin and intended that one or more
of her confederates commit that attempted robbery. The final three elements of
CALCRIM No. 540B as read to the jury provided: “3. If the defendant did not personally
commit attempted robbery, then a perpetrator personally committed attempted robbery;
and [¶] 4. While committing attempted robbery, the perpetrator did an act that caused the
death of another person; [¶] 5. There was a logical connection between the act causing
the death and the attempted robbery.” From this, the jury would have understood that to
find Jordan guilty of felony murder under a coconspirator liability theory, it would have
to find that she was a member of a conspiracy to commit the attempted robbery of Garvin.

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For the Northern District of California

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In addition, the trial court instructed the jurors to refer to the conspiracy
instructions to determine “whether a defendant was a member of a conspiracy to commit
robbery before the time of the act causing death....” CALCRIM No. 415 informed the jury
that the defendants were charged with conspiracy to commit robbery and the court listed
Green’s shooting of Garvin and his reaching into Garvin’s pockets as two of the possible
overt acts they might find in furtherance of the overall conspiracy. The instructions thus
made plain that the attempted robbery of Garvin was part of the single overall conspiracy
with which appellants were charged. We presume that the jury was capable of
understanding and correlating both the instructions on felony murder and the instructions
on conspiracy. (E.g., People v. Sanchez (2001) 26 Cal.4th 834, 852.) When it did so, the
jury would have understood that to convict Jordan of felony murder as a coconspirator,
it would have to find (1) that she intended to agree and did agree with one or more of her
codefendants to commit robberies that included the attempt to rob Garvin and (2) that she
intended that one or more of her codefendants would commit that robbery. Finally, the
jury did find that codefendant Green’s actions in shooting Garvin, and in reaching into
his pockets following the shooting, were overt acts in support of the conspiracy and were
done to “help accomplish the agreed-upon crime.” After hearing and reading the
instructions as a whole, it is not reasonably likely the jury could have concluded, as
Jordan argues, that it could convict her of the murder of Garvin solely by finding that she
was a member of a conspiracy to rob Alston and Holmes.
Cal. Ct. App. Opinion, ¶. 24-30 (footnotes renumbered).
The state appellate court’s decision was consistent with Supreme Court precedent in
judging the instructions not in artificial isolation but in the context of the instructions as a whole
and the trial record. See supra at 17 (citing People v. Dieguez, 89 Cal.App.4th at 276); see
Estelle , 502 U.S. at 72. Contrary to Jordan’s claims, it is clear that in the context of the
instructions as a whole, there was no reasonable likelihood that the jury found Jordan guilty of

20

felony murder based on inadequate findings. First of all, the jury would have understood the

2

consistent reference to “defendant” as including Jordan. As pointed out by the state appellate

3

court, the jury was read instructions that included the last three elements of CALCRIM No.

4

540B: “3. If the defendant did not personally commit attempted robbery, then a perpetrator

5

personally committed attempted robbery; and [¶] 4. While committing attempted robbery, the

6

perpetrator did an act that caused the death of another person; [¶] 5. There was a logical

7

connection between the act causing the death and the attempted robbery.” See supra at 20-21.

8

The Court agrees with the state appellate court’s conclusion that from these instructions, the jury

9

would have understood that to find a “defendant,” i.e., Jordan, guilty of felony murder under a

10
United States District Court
For the Northern District of California

1

coconspirator liability theory, “it would have to find that she was a member of a conspiracy to

11

commit the attempted robbery of Garvin.” Id. at 21. Jordan’s claim that the “predicate crime”

12

relevant to the conspiracy to rob theory was only the attempted robbery of Garvin, rather than

13

the earlier robbery of Alston and Holmes, is incorrect; rather, the “predicate crime” was the

14

conspiracy to commit several robberies that night, which included the robberies of Alston,

15

Holmes, and Garvin. The prosecution stressed repeatedly in closing argument that the

16

defendants were engaged in a single conspiracy to commit more than one robbery that evening,

17

describing the conspiracy as “this overall conspiracy [to] commit robberies here in San Francisco

18

that night...” and “a conspiracy to rob folks in San Francisco.” Id. at 20. As discussed in

19

Jordan’s first claim, there was sufficient evidence for the jury to reasonably conclude that Jordan

20

had the necessary specific intent to conspire to commit multiple robberies that night: “Jordan

21

was not only aware that another robbery would be committed, but that she agreed that it would

22

be committed and intended that her accomplices commit it.” Id. at 14. Jordan’s claim that the

23

jury instructions with respect to the conspiracy to commit robbery charge was inadequate is

24

without merit, and she is not entitled to habeas relief on this claim.

25
26

B.

27

Alternatively, Jordan claims that even if the instructions were not inadequate for the

28

reasons discussed above, they were nevertheless unconstitutional as misleading and ambiguous.

Instructions were misleading and ambiguous

21

1

In rejecting Jordan’s opening claim attacking the adequacy of the instructions as

2

discussed above, the Court of Appeal also rejected any notion that the instructions were

3

misleading and ambiguous: “The instructions thus made plain that the attempted robbery of

4

Garvin was part of the single overall conspiracy with which appellants were charged. We

5

presume that the jury was capable of understanding and correlating both the instructions on

6

felony murder and the instructions on conspiracy.” See supra at 20.
In reviewing an ambiguous instruction, the inquiry is not how reasonable jurors could or

8

would have understood the instruction as a whole; rather, the court must inquire whether there

9

is a “reasonable likelihood” that the jury has applied the challenged instruction in a way that

10
United States District Court
For the Northern District of California

7

violates the Constitution. See Estelle v. McGuire, 502 U.S. at 72 & n.4; Boyde v. California,

11

494 U.S. 370, 380 (1990). In order to show a due process violation, the defendant must show

12

both ambiguity and a “reasonable likelihood” that the jury applied the instruction in a way that

13

violates the Constitution, such as relieving the state of its burden of proving every element

14

beyond a reasonable doubt. Waddington v. Sarausad, 555 U.S. 179, 190-191 (2009) (internal

15

quotations and citations omitted).

16

Jordan’s claim fails because she fails to show that the instructions were both ambiguous

17

and that there was a reasonable likelihood that the jury applied the instruction in a way that

18

violates the Constitution. There was no ambiguity with respect to the elements that the jury

19

would have to find in order to convict Jordan of felony murder as a coconspirator. As the Court

20

of Appeal found, the jury would have understood based on the instructions it was given that it

21

would have to find: “(1) that [Jordan] intended to agree and did agree with one or more of her

22

codefendants to commit robberies that included the attempt to rob Garvin and (2) that she

23

intended that one or more of her codefendants would commit that robbery.” See supra at 20.

24

Furthermore, the jury found that “codefendant Green’s actions in shooting Garvin, and in

25

reaching into his pockets following the shooting, were overt acts in support of the conspiracy and

26

were done to ‘help accomplish the agreed-upon crime.’” Id. The Court of Appeal reasonably

27

concluded that “[a]fter hearing and reading the instructions as a whole, it is not reasonably likely

28

the jury could have concluded, as Jordan argues, that it could convict her of the murder of Garvin
22

1

solely by finding that she was a member of a conspiracy to rob Alston and Holmes.” The Court

2

finds no merit to Jordan’s claim that the instructions were misleading and ambiguous. Jordan

3

is not entitled to habeas relief on this claim.

4
5

C.

Failure to include instruction on unanimous verdict

6

Jordan next claims that the trial court erred in refusing to give an instruction that the jury

7

must agree unanimously on all the facts required for coconspirator liability in felony murder.

8

The California Court of Appeal rejected this claim as well:

9

For similar reasons, we reject Jordan’s argument that the trial court erred in
refusing to instruct the jury that it must unanimously agree that she conspired to commit
an attempted robbery of Garvin before she could be found guilty of felony murder as a
coconspirator. We note first that no such instruction was requested below. Instead,
Jordan’s trial counsel simply joined in an objection by Grady’s counsel that the jury
should be required to agree on one overt act. And as we have explained above, it is not
reasonably likely the jury could have read the instructions on felony murder and
conspiracy together and have concluded that it could convict Jordan of felony murder
without agreeing that she had conspired to commit both the Alston/Holmes robberies and
the attempted robbery of Garvin.

United States District Court
For the Northern District of California

10
11
12
13
14
15

Cal. Ct. App. Opinion, p. 30 (original emphasis).

16

Jordan claims in her petition that the Court of Appeal was incorrect in its conclusion:

17

Contrary to the Court of Appeal’s opinion, in light of the non-unanimity
instruction, the conspiracy conviction demonstrates only that the jurors found that
petitioner conspired to commit the crime of robbery and that at least one juror found an
overt act relating to Garvin, but not that any jurors agreed that the Garvin attempted
robbery (as distinct from the robberies of Alston and Holmes) was an object of the
conspiracy.... In other words, nothing in the conspiracy instructions required that the
jurors agree that count two [the attempted robbery of Garvin] was an object of the
conspiracy or that the jurors make the requisite findings of specific intent and agreement
for co-conspirator liability of petitioner in the alleged felony murder of Carlos Gavin.

18
19
20
21
22

Doc. 2 at 17-18 (original emphasis).

23

Jordan’s argument is unpersuasive. The Court of Appeal was not unreasonable to

24

conclude that the jury, in reading the instructions on felony murder and conspiracy together,

25

would have concluded that it could not convict Jordan of felony murder without agreeing that

26

she intended to conspire to commit multiples robberies that night, and that she intended to aid

27

and abet the commission of the robberies or that she intended that other members of the

28

conspiracy commit the robberies, which included the Alston/Holmes robberies and the attempted
23

1

robbery of Garvin. The jury was not required to find separate intent to conspire for each

2

robbery, but rather that Jordan was part of a single ongoing conspiracy to commit several

3

robberies during the course of the evening. It is clear from the instructions taken as a whole and

4

the prosecution’s repeated references in closing argument to a “single conspiracy” that the jury

5

would have understood that for co-conspirator felony murder liability to attach to Jordan that

6

they had to find that she was a member of a single conspiracy to commit the robberies of

7

Alston/Holmes and Garvin, and not just the former. This claim is without merit, and does not

8

warrant habeas relief.

9
United States District Court
For the Northern District of California

10
11

D.

Jury instructions with respect to “natural and probable consequences theory of
liability”

12

Jordan claims that the trial court erred by giving CALCRIM 417 because the instruction

13

led the jurors to believe that the natural and probable consequences doctrine of liability applied

14

to co-conspirator liability in felony murder.

15

The California Court of Appeal denied this claim as being forfeited:

16

Jordan, joined by Robinson, argues that the trial court violated her federal
constitutional rights to due process and jury trial by instructing the jury on CALCRIM
No. 417. The basis of this claim is Jordan’s view that CALCRIM No. 417 may have led
the jury to conclude that the natural and probable consequences doctrine played a role in
coconspirator liability for felony murder. As Jordan explains, “the jurors may have
concluded that appellant could be guilty of felony murder if she conspired to commit the
Alston/Homes robbery and the attempted robbery and/or felony murder - commission of
an act causing death during the attempted robbery - was a natural and probable
consequence of the agreed upon Alston/Holmes robbery.”

17
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19
20
21
22
23
24
25
26

In the trial court, however, when defense counsel were asked whether they
objected to CALCRIM No. 417 as written, no one raised the objection that Jordan now
presents on appeal. Instead, counsel for Grady stated that she had put her objections on
the record and continued, “I think there’s two conspiracies. I think the jury should be
required to agree on one overt act.” Jordan’s trial counsel joined in that objection without
more. Having failed to raise this claim below, Jordan may not now assert it on appeal.
(See, e.g., People v. Stitely (2005) 35 Cal.4th 514, 546; I Eisenberg et al., Cal. Practice
Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 8:229, p. 8-155.)
Cal. Ct. App. Opinion, p. 31.

27

Respondent argues that the Court of Appeal’s rejection of this claim was based on an

28

independent and adequate state ground barring relief which bars federal habeas review of the
24

1

claim. Specifically, respondent contends that California’s failure-to-object procedural bar has

2

long been deemed adequate to prohibit federal habeas review of the claim at issue. Ans. at 25,

3

citing Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir. 1981); Bonin v. Calderon, 59 F.3d 815,

4

842-43 (9th Cir. 1995).
A federal court will not review questions of federal law decided by a state court if the

6

decision also rests on a state law ground that is independent of the federal question and adequate

7

to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). In the context

8

of direct review by the United States Supreme Court, the “adequate and independent state

9

ground” doctrine goes to jurisdiction; in federal habeas cases, in whatever court, it is a matter

10
United States District Court
For the Northern District of California

5

of comity and federalism. Id. The procedural default rule is a specific instance of the more

11

general “adequate and independent state grounds” doctrine. Wells v. Maass, 28 F.3d 1005, 1008

12

(9th Cir. 1994).

13

Despite Jordan’s arguments to the contrary, it is clear that her failure to object at trial to

14

CALCRIM No. 417 bars this Court from reviewing the claim. The Ninth Circuit has recognized

15

and applied the California contemporaneous objection rule in affirming denial of a federal

16

petition on grounds of procedural default where there was a complete failure to object at trial.

17

See Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005) (holding petitioner barred from

18

challenging admission of evidence for failure to object at trial); Paulino v. Castro, 371 F.3d

19

1083, 1092-93 (9th Cir. 2004) ((holding petitioner barred from challenging jury instruction for

20

failure to object at trial); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999) (holding

21

petitioner barred from challenging denial of peremptory challenges for failure to

22

contemporaneously object). The state appellate court found that when defense counsel were

23

asked if they objected to CALCRIM No. 417 as written, no one raised an objection. See supra

24

at 25. This claim is procedurally defaulted, and because Jordan has not shown cause and

25

prejudice or a miscarriage of justice, see Coleman v. Thompson, 501 U.S. 722, 750 (1991), it is

26

barred.

27
28
25

1

E.

2

The Court of Appeal found that even if the instructions were flawed, Jordan was

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For the Northern District of California

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25
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28

Harmless error

nevertheless not entitled to relief because the errors were harmless:
Even if we agree with Jordan’s claims that the instructions were
erroneous, we would conclude that any such error was harmless. [FN.15 – On
April 7, 2009, at the request of Jordan’s counsel, we permitted supplemental
briefing assessing the effect of the California Supreme Court’s recent decision
in People v. Chun (2009) 45 Cal.4th 1172 on whether the instructional errors
claimed by Jordan are harmless.] In People v. Chun, supra, anther felony-murder
case, our high court explained that one way a reviewing court may find an
instructional error harmless beyond a reasonable doubt is by relying on other
portions of the jury’s verdict that demonstrate that the jury employed a legally
valid theory to convict the defendant. (People v. Chun, supra, 45 Cal.4th at p.
1203.) It noted, however, that is not the only way to do so. (Ibid.) It also found
that a test stated by Justice Scalia in his concurring opinion in California v. Roy
(1996) 519 U.S. 2 “is adaptable to the reasonable doubt standard of direct
review.” (People v. Chun, supra, at p. 1204.) Quoting Justice Scalia, the
California Supreme Court set forth the test: “‘The error in the present case can
be harmless only if the verdict on other points effectively embraces this one or
if it is impossible, upon the evidence, to have found what the verdict did find
without finding this point as well.’” (Ibid., quoting California v. Roy, supra, at
p. 7 (conc. opn. of Scalia, J.).) Put another way, “[i]f other aspects of the verdict
or the evidence leave no reasonable doubt that the jury made the findings
necessary for [a valid theory of murder,] the erroneous felony-murder instruction
was harmless.” (People v. Chun, supra, 45 Cal.4th at p. 1205.)
We conclude that the record before us leaves no doubt that the jury made
the findings Jordan claims were omitted by the allegedly erroneous CALCRIM
No. 540B. That is, we are convinced that the jury found that (1) the attempted
robbery of Garvin was an object of the conspiracy of which Jordan was a part,
and (2) she intended that one or more members of the conspiracy commit the
attempted robbery of Garvin. First, the jury convicted Jordan of the conspiracy
charged in count 5. That conviction required the jury to find that Jordan: (1)
intended to agree and did agree with one or more of the other defendants to
commit robbery; (2) at the time of the agreement, Jordan and one of more of the
other alleged members of the conspiracy intended that one of them would
commit robbery; and (3) one or more of the defendants committed at least one
of the alleged overt acts to accomplish robbery. (CALCRIM No. 415.) Second,
as we have explained above, the conspiracy to rob charged in count 5 of the
information included the attempted robbery of Garvin, and the final two overt
acts listed, which the jury found true, were Green’s shooting of Garvin and his
reaching into Garvin’s pockets. The prosecutor emphasized during closing
argument that the defendants were engaged in a single conspiracy to rob and
specifically argued that Jordan was a member of the still-ongoing conspiracy
when Garvin was killed. [FN. 16 – When the trial court and counsel discussed
proposed jury instructions, counsel for Grady contended that “this is a case
where two discrete conspiracies are alleged.” She asserted that the robberies of
Alston and Holmes were the subject of one conspiracy, and the attempted
robbery of Garvin was the subject of another. She expressed the view that the
prosecutor would argue that there were two discrete conspiracies. The
prosecutor stated that he did not intend to so argue, and the trial court agreed that
only one conspiracy was charged. In his closing argument, the prosecutor argued
26

that there was a single conspiracy, and that the felony murder of Garvin resulted
from an attempted robbery in furtherance of that conspiracy.] And as we make
clear in the following section of this opinion, there was ample evidence to
support the jury’s finding of Jordan’s participation in that conspiracy. Thus, the
jury convicted Jordan of involvement in a conspiracy that, according to the
charges, evidence, and argument, included the attempted robbery of Garvin.

1
2
3
4

In addressing the effect of the harmless error analysis adopted in People
v. Chun, Jordan repeats the argument made in her opening brief that the
instructions permitted the jury to find her guilty of murder if they found that she
conspired to commit the Alston/Holmes robberies; that she knew that Green, her
coconspirator in those robberies, would commit another robbery or was likely
to do so; that Green committed the count 2 attempted robbery; and that there was
a logical connection between the act causing death and the Garvin attempted
robbery. But her supplemental brief does not come to grips with the jury’s
finding that she was guilty of a single conspiracy to rob, and that at least two of
the overt acts in furtherance of that conspiracy directly involved the attempted
robbery and shooting of Garvin. Nor does it address why her conviction of a
single conspiracy to rob embracing the robberies of Alston and Holmes, as well
as the attempted robbery of Garvin, would not demonstrate that the jury made
the findings necessary to convict her on a valid theory of coconspirator felonymurder liability.

5
6
7
8
9
United States District Court
For the Northern District of California

10
11
12

In sum, we conclude that “other aspects of the verdict or the evidence
leave no reasonable doubt” that the jury found that Jordan conspired to commit
the attempted robbery of Garvin charged in count 2 and that she intended for one
or more members to commit the robbery of Garvin. (See People v. Chun, supra,
45 Cal.4th at p. 1205.) Thus, even if we found the challenged instructions
erroneous (which we do not), we would still find the error harmless beyond a
reasonable doubt.

13
14
15
16
17

Cal. Ct. App. Opinion, ¶. 32-35.
Even if there were constitutional error, habeas relief cannot be granted absent a

18
19
20
21
22
23
24

“substantial and injurious effect” on the verdict. Brecht, 507 U.S. at 637. In this case, where
the jury convicted Jordan based on ample evidence of her participation in a single, ongoing
conspiracy that, according to the charges, evidence, and argument, included the attempted
robbery of Garvin, any error was harmless. The state appellate court’s rejection of Jordan’s jury
instruction claims was not contrary to, or an unreasonable application of, clearly established
Supreme Court authority.

25
26
27
28

III.

Due process claim for failure to instruct on defense theory
Jordan next claims that the trial court violated her Sixth and Fourteenth Amendment

rights when it refused to instruct on her defense theory, that is, “by refusing to instruct that the

27

jurors must unanimously agree that Petitioner conspired to commit the attempted robbery of

2

Carlos Garvin charged in count two in order to find her guilty of felony murder as a co-

3

conspirator.” Doc. 2 at 25. It appears that defense counsel’s strategy was to argue that there

4

were potentially two conspiracies charged as one and that the prosecution’s felony murder theory

5

was connected to the “second” conspiracy. The trial court denied the request as there was only

6

one conspiracy charge. Jordan argues that the trial court’s denial foreclosed the defense “from

7

obtaining a correct instruction that if the jurors did not unanimously agree that petitioner

8

conspired to commit the count two attempted robbery of Carlos Garvin - if they did not agree

9

that it was an object of the conspiracy - they could not find her guilty of felony murder as a

10
United States District Court
For the Northern District of California

1

coconspirator.” Doc. 2 at 25-26. This claim is similar to Jordan’s earlier claim that the trial

11

court erred in refusing to give an instruction that the jury must agree unanimously on all the facts

12

required for coconspirator liability in felony murder. See supra at 23-24. As discussed above,

13

the California Court of Appeal rejected that claim:

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

For similar reasons, we reject Jordan’s argument that the trial court erred in
refusing to instruct the jury that it must unanimously agree that she conspired to commit
an attempted robbery of Garvin before she could be found guilty of felony murder as a
coconspirator. We note first that no such instruction was requested below. Instead,
Jordan’s trial counsel simply joined in an objection by Grady’s counsel that the jury
should be required to agree on one overt act. And as we have explained above, it is not
reasonably likely the jury could have read the instructions on felony murder and
conspiracy together and have concluded that it could convict Jordan of felony murder
without agreeing that she had conspired to commit both the Alston/Holmes robberies and
the attempted robbery of Garvin.
Cal. Ct. App. Opinion, p. 30 (original emphasis).
The state appellate court noted that no such instruction was actually requested. Jordan
states in her petition that although defense counsel “might have articulated their specific requests
more clearly,” they nevertheless alerted the trial court to their concern that, “in light of the
potential that there was more than one conspiracy charged in one count, the instructions opened
petitioner up to additional punishment under a felony murder theory without adequate, agreedupon findings that the object of the conspiracy was that required for felony murder.” Doc. 2 at
25. However, the state appellate court found that it was not reasonably likely that the jury could
have read the instructions as a whole and concluded that it could convict Jordan of felony murder

28

1

without agreeing “that she had conspired to commit both the Alston/Holmes robberies and the

2

attempted robbery of Garvin.” As this Court noted several times in previous discussions, the

3

prosecution emphasized in closing that there was a single ongoing conspiracy, and that the

4

evidence supported the jury’s finding that Jordan intended to participate in the conspiracy from

5

beginning to end. The state court’s determination was not an unreasonable application of

6

Supreme Court precedent nor was it based on an unreasonable determination of the facts in light

7

of the evidence presented, which included all the instructions given and the arguments of

8

counsel. 28 U.S.C. § 2254(d).

9
United States District Court
For the Northern District of California

10

IV.

Ineffective assistance of counsel

11

Jordan’s last two claims allege that her counsel rendered ineffective assistance for failing

12

to make sufficient argument on jury instructions and for failing to object to CALCRIM No. 417.

13

In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner

14

must establish two things. First, she must establish that counsel’s performance was deficient,

15

i.e., that it fell below an “objective standard of reasonableness” under prevailing professional

16

norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, she must establish that

17

she was prejudiced by counsel’s deficient performance, i.e., that “there is a reasonable

18

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

19

been different.” Id. at 694. A reasonable probability is a probability sufficient to undermine

20

confidence in the outcome. Id.

21
22
23
24
25
26
27
28

The Court of Appeal rejected Jordan’s claim that her counsel provided ineffective
assistance for failing to make a sufficient request for jury instructions on unanimity:
We disagree with Jordan’s claim that her trial counsel was ineffective for failing
to request an instruction that the jury must unanimously agree that she conspired to
commit the attempted robbery of Garvin before she could be found guilty of felony
murder as a coconspirator. As explained above, on direct appeal, we may not reverse a
conviction on the grounds of ineffective assistance of counsel unless the record
affirmatively discloses that counsel had no rational tactical purpose for the act or
omission in question. (People v. Jones, supra, 29 Cal.4th at p. 1254.) Where the record
sheds no light on the issue, we must affirm unless there could be no conceivable reason
for counsel’s act or omission. (Ibid.) Moreover, even if, after our review of the record,
“we have serious doubt that a satisfactory explanation could be provided, (but) we are
unable to conclude that it could not,” we must reject an ineffective assistance of counsel
29

1

claim. (People v. Ledesma, supra, 43 Cal.3d at p. 218.)

2

Here, her attorney did not explain why he did not request the instruction Jordan
now seeks. He may not have requested it because he concluded, as we have, that the
instructions were adequate. Since the record sheds no light on why counsel failed to
request the instruction, and we cannot say that no satisfactory explanation could be
provided, we must reject Jordan’s claim. (See People v. Jones, supra, 29 Cal.4th at p.
1254; People v. Ledesma, supra, 43 Cal.3d at p. 218.)

3
4
5

Cal. Ct. App. Opinion, ¶. 31-32.
6
7
8
9
United States District Court
For the Northern District of California

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25
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Here, this Court finds no basis for disturbing the conclusion of the state appellate court.
Even assuming that counsel was deficient for failing to request the specific instruction at issue,
Jordan cannot show that she was prejudiced by it. A defendant must show that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 688. The test for prejudice is not outcome-determinative, i.e., defendant
need not show that the deficient conduct more likely than not altered the outcome of the case;
however, a simple showing that the defense was impaired is also not sufficient. Id. at 693. The
defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different; a reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id. at 694. As discussed in the
review of the numerous jury instruction claims above, the state appellate court was not
unreasonable for concluding that there was no error, and that furthermore, the alleged errors
were likely harmless. See supra at 28. Based upon a review of the instructions presented at the
trial as a whole and the arguments presented by the prosecution, it cannot be said that the jury
would have come to a different verdict if they had been required to unanimously agree that
Jordan conspired to commit the attempted robbery of Garvin before she could be found guilty
of felony murder as a coconspirator. There was ample evidence to support the finding that
Jordan agreed to a single, ongoing conspiracy to commit several robberies that night, including
the Alston/Holmes robberies and the attempted Garvin robbery. Jordan has failed to show that
but for counsel’s error, the outcome of the trial would have been different.
The Court of Appeal also denied Jordan’s second ineffective assistance of counsel claim:
To the extent Jordan’s claim of ineffective assistance of counsel is based on her
attorney’s failure to object to the giving of CALCRIM No. 417, we again conclude that
30

Jordan has failed to meet her burden of showing that her counsel was ineffective. (People
v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) The record does not reveal why he made
2
no such objection, but he may simply have believed that the jury would understand that
the natural and probable consequences doctrine could not substitute for the findings
3
required by CALCRIM No. 540B. In addition, counsel may have assumed that the jury
would understand from the trial court’s instructions that CALCRIM No. 417 applied to
4
the count 5 conspiracy charge, rather than to the count 1 murder charge.
Cal. Ct. App. Opinion, p. 32.
1

5

The following CALCRIM No. 417, “Liability for Conconspirator’s Acts,” was given to
6
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9
United States District Court
For the Northern District of California

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the jury at trial:
A member of a conspiracy is criminally responsible for the crimes that he or she
conspires to commit, no matter which member of the conspiracy commits the crime.
A member of the conspiracy is also criminally responsible for any act of any
member of the conspiracy if that act is done to further the conspiracy and that act is a
natural and probable consequence of the common plan or design of the conspiracy. This
rule applies even if the act was not intended as part of the original plan. Under this rule,
defendant who is a member of the conspiracy does not need to be present at the time of
the act.
A natural and probable consequence is one that a reasonable person would know
is likely to happen if nothing unusual intervenes. In deciding whether a consequence is
natural and probable, consider all of the circumstances established by the evidence.
A member of the conspiracy is not criminally responsible for the act of another
member if that act does not further the common plan or is not a natural and probable
consequence of the common plan.
To prove that a defendant is guilty of the crime charged in Count 5 [conspiracy],
the People must prove that:
1. The defendant conspired to commit the following crime: robbery;
2. A member of the conspiracy committed robbery to further the conspiracy; AND
3. Robbery was a natural and probable consequence of the common plan or design
of the crime that the defendant conspired to commit. The defendant is not responsible for
the acts of another person who was not a member of the conspiracy even if the acts of the
other person helped accomplish the goal of the conspiracy.
A conspiracy member is not responsible for the acts of other conspiracy members
that are done after the goal of the conspiracy as been accomplished.
Rep.’s Tr. 2186-87.
In support of her claim, Jordan provides defense counsel’s declaration in which he
acknowledges that it was an oversight on his part for failing to object to CALCRIM No. 417.
Specifically, counsel states that, “If I needed to make any arguments or objections in addition
to those I made at trial in order to alert the trial court that I believed this version of CALCRIM
417 was erroneous and should not be given because the prosecutor was not relying on a natural

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and probable consequences theory of conspiracy liability, it could only have been an oversight

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on my part not to make those additional arguments.” Doc. 33, Ex. A at 6. However, assuming

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that counsel’s performance was deficient, Jordan must still show prejudice, i.e., but for such

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error, the result of the trial would have been different. Strickland, 466 U.S. at 694. It is

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undisputed that the prosecution did not rely on nor set forth any arguments to the jury of

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conspiracy liability based on natural and probable consequences. Rather, the prosecution

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emphasized Jordan’s liability under felony murder for her part in the conspiracy. It is therefore

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reasonably likely that the jury followed the instructions under CALCRIM No. 540B – which set

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forth the first-degree felony murder doctrine where a coparticipant committed the fatal act – in

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United States District Court
For the Northern District of California

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finding Jordan guilty of felony murder. As respondent points out, the remainder of the

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instructions did not allow for the natural and probable consequences doctrine to substitute for

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the necessary findings under CALCRIM No. 540B. Ans. at 35. The Court is therefore not

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convinced that CALCRIM No. 417 so misled or confused the jury as to undermine confidence

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in the outcome of the trial. Strickland, 466 U.S. at 694. Furthermore, even if counsel had not

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erred and properly objected to CALCRIM No. 417 such that it was not given to the jury, there

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was nevertheless sufficient evidence for the jury to convict under the remaining instructions as

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a whole.

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Accordingly, the state appellate court’s rejection of these claims was not contrary to, or

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an unreasonable application of, clearly established Supreme Court authority. Neither of these

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ineffective assistance of counsel claims therefore cannot serve as a basis for habeas relief.

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///

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CONCLUSION

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For the foregoing reasons, the petition for writ of habeas corpus is DENIED. A certificate

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of appealability will not issue. Reasonable jurists would not “find the district court’s assessment

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of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Jordan may seek a certificate of appealability from the Ninth Circuit Court of Appeals. The

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clerk shall enter judgment in favor of respondent, and close the file.

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IT IS SO ORDERED.
DATED: July 9, 2012
SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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