Stephen Bennett v. RON BARNES, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN BENNETT,
Petitioner - Appellant,
v.
RON BARNES, Warden,
Respondent - Appellee.
No. 13-56117
D.C. No. 8:12-cv-00644-GAF-
PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted January 9, 2015
Pasadena, California
Before: WARDLAW, W. FLETCHER, and OWENS, Circuit Judges.
Stephen Bennett appeals the district court’s denial of his petition for habeas
corpus under 28 U.S.C. § 2254. He was convicted in state court of felony murder
with special circumstances, Cal. Penal Code § 190.2(d), and sentenced to life
without the possibility of parole. On the issue for which the district court granted a
FILED
MAR 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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certificate of appealability, Bennett argues that the evidence of the element of
“reckless indifference to human life” under § 190.2(d) was insufficient to support a
conviction under Jackson v. Virginia, 443 U.S. 307, 324 (1979), and that the
California Court of Appeal unreasonably applied Jackson in holding otherwise.
We review the district court’s decision de novo, and we affirm.
According to the California Supreme Court, the interpretation of
§ 190.2(d)’s “reckless indifference to human life” element derives from Tison v.
Arizona, 481 U.S. 137 (1987). People v. Estrada, 904 P.2d 1197, 1201 (Cal.
1995). “Tison . . . instructs that the culpable mental state of ‘reckless indifference
to life’ is one in which the defendant ‘knowingly engag[es] in criminal activities
known to carry a grave risk of death.’” Id. at 1202 (latter alteration in original)
(quoting Tison, 481 U.S. at 157).
The California Court of Appeal did not unreasonably determine that a
rational jury could have concluded that Bennett was subjectively aware of a grave
risk of death. There is evidence showing, or at least supporting an inference, that
Bennett knew that his accomplices planned to commit an armed robbery and that
he failed to render aid to the injured victim. The state court did not unreasonably
determine that the jury could have interpreted the secretly recorded conversation
between Bennett and one of the shooters to mean that Bennett was aware that the
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shooters would be armed. And the jury could have inferred that Bennett heard,
along with several witnesses, the fatal shots, knew that the victim was injured, and
drove the shooters home rather than rendering aid to the victim.
We construe Bennett’s briefing of an uncertified issue as a motion to expand
the certificate of appealability, Ninth Cir. R. 22-1(e), and deny it.
AFFIRMED.
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