Kathryn Potter v. TINA HORNBECK, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHRYN POTTER,
Petitioner - Appellant,
v.
TINA HORNBECK, Warden,
Respondent - Appellee.
No. 11-15338
D.C. No. 2:08-cv-01174-MSB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Marsha S. BERZON, Circuit Judge, Presiding
Argued and Submitted February 14, 2012
San Francisco, California
Before: B. FLETCHER, NOONAN, and PAEZ, Circuit Judges.
California state prisoner Kathryn Potter (“Potter”) appeals the denial of her
petition for a writ of habeas corpus alleging that her conviction for second-degree
murder violated due process. We affirm.
FILED
MAR 01 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Potter’s conviction arose from the death of twelve-year-old Christopher
Cejas (“Christopher”). The evidence at trial showed that Andrew Cejas (“Cejas”),
Potter’s putative husband and Christopher’s father, beat the child to death. Potter
was in the apartment she shared with Cejas during the beating and in the hours
afterward but did nothing to protect Christopher or seek medical care for him.
The district court had jurisdiction over Potter’s petition for a writ of habeas
corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 2253.
We review de novo the district court’s denial of a prisoner’s petition for a
writ of habeas corpus. Woods v. Sinclair, 655 F.3d 886, 896 (9th Cir. 2011) (citing
Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007)). Potter must show that the
state court’s adjudication of her claims “resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
“A state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting
Yarborough v. Alvarado, 541 U.S 652, 664 (2004)).
Potter argues that under California law, a person who has care and custody
of a minor and fails to seek medical aid for the child cannot be convicted of

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second-degree implied malice murder on the basis of that omission. She asserts
that the trial court erred in instructing the jury to the contrary and violated clearly
established federal law as determined by the Supreme Court of the United States in
Sandstrom v. Montana, 442 U.S. 510 (1979), and Bouie v. City of Columbia, 378
U.S. 347 (1964). We conclude that Potter’s challenges to her conviction for
second-degree implied malice murder are procedurally defaulted because she failed
to raise them before the California Court of Appeal. See Coleman v. Thompson,
501 U.S. 722, 729–30 (1991); People v. Potter, Nos. C052634, C053349, 2007
WL 4305547, at *7 (Cal. Ct. App. Dec. 10, 2007).
If we were to address the merits of Potter’s claims, we would conclude that
the jury instructions given in Potter’s case did not violate due process. In 1977, the
California Court of Appeal concluded that a father’s failure to feed his son
supported a conviction for second-degree implied malice murder when the infant
starved to death. People v. Burden, 140 Cal. Rptr. 282, 288–89 (Cal. Ct. App.
1977). Potter’s assertion that People v. Whisenhunt, 186 P.3d 496 (Cal. 2008),
reached a contrary result is incorrect. The jury instructions given at Potter’s trial
did not relieve the State of the burden of proof on any element of second-degree
murder in violation of Sandstrom. Nor did they constitute an unforeseeable
judicial enlargement of a criminal statute in violation of Bouie.

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Potter contends that the trial court violated due process when it failed to
instruct the jury on the necessity defense sua sponte. A criminal defendant is
“entitled to an instruction as to any recognized defense for which there exists
evidence sufficient for a reasonable jury to find in his favor.” Matthews v. United
States, 485 U.S. 58, 63 (1988). In a collateral attack on a state conviction, the
question is whether the instructional error “so infected the entire trial that the
resulting conviction violates due process.” Henderson v. Kibbe, 431 U.S. 145, 154
(1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Even if there was
sufficient evidence to support a necessity defense, Potter cannot demonstrate
prejudice. The California Court of Appeal was correct in concluding that a jury
that rejected the duress defense could not have found that all elements of the
necessity defense were satisfied.
Potter also challenges the sufficiency of the evidence supporting her second-
degree murder conviction. The jury was instructed on two theories of second-
degree murder: (1) implied malice murder and (2) aiding and abetting child abuse
with death as a natural and probable consequence. We must affirm Potter’s
conviction if either of these two legal theories is supported by the evidence. See
Sochor v. Florida, 504 U.S. 527, 538 (1992) (citing Griffin v. United States, 502
U.S. 46 (1991)). We conclude that Potter’s challenge to the sufficiency of the

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evidence supporting the implied malice murder theory is procedurally defaulted.
See Coleman, 501 U.S. at 729–30; Potter, 2007 WL 4305547, at *7. If we were to
reach the merits of Potter’s sufficiency of the evidence challenge, we would
conclude, for the reasons stated by the district court, that her conviction for implied
malice murder was supported by the evidence.
AFFIRMED.

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