Antonio Tony Lozano v. RALPH M. DIAZ, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO TONY LOZANO,
Petitioner - Appellant,
v.
RALPH M. DIAZ, Warden,
Respondent - Appellee.
No. 12-55330
D.C. No. 5:09-cv-01847-JSL-
MRW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, Senior District Judge, Presiding
Argued and Submitted November 17, 2014
Pasadena, California
Before: SCHROEDER, PREGERSON, and NGUYEN, Circuit Judges.
Petitioner Antonio Lozano appeals the district court’s denial of his 28 U.S.C.
§ 2254 habeas petition, challenging his California second-degree murder
conviction. Because the state court did not make an unreasonable determination of
FILED
DEC 05 2014
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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the facts nor unreasonably apply clearly established federal law, we affirm. See 28
U.S.C. § 2254(d).
Petitioner was convicted under a felony murder theory, predicated on his
felony charge for grossly negligent discharge of a firearm that could result in injury
or death under California Penal Code § 246.3. Although the California Supreme
Court’s decision in People v. Chun, 203 P.3d 425, 444 (Cal. 2009), indicates that
negligent discharge of a firearm merges with the killing so a charge under § 246.3
cannot support felony murder, that decision came out after Petitioner’s conviction
was final. Chun changed the law because it overruled the California Supreme
Court’s prior opinions in People v. Robertson, 95 P.3d 872 (Cal. 2004), and People
v. Randle, 111 P.3d 987 (Cal. 2005), which were applicable when Petitioner’s
conviction became final. Subsequent changes in state law cannot be grounds for
federal habeas relief. See, e.g., Kleve v. Hill, 243 F.3d 1149, 1151 (9th Cir. 2001).
Recognizing this, Petitioner attempts to argue that the state courts made an
unreasonable determination of the facts by finding he fired the shots with the
collateral purpose of frightening the victims. To warrant relief, the state court’s
factual determinations must be objectively unreasonable, not merely incorrect or
debatable. Wood v. Allen, 558 U.S. 290, 301 (2010). Petitioner testified that he
intended to frighten the victims, and under California law at the time of his
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conviction, this was a sufficient collateral purpose to prevent the shooting from
merging with the killing for felony murder purposes. See Robertson, 95 P.3d at
881. The state court’s determination was not objectively unreasonable. Further,
because this is a question of state law, Petitioner’s contention that the collateral
purpose finding violated federal law is unavailing. See Butler v. Curry, 528 F.3d
624, 642 (9th Cir. 2008) (“We are bound to accept a state court’s interpretation of
state law, except in the highly unusual case in which the interpretation is clearly
untenable . . . .”) (internal quotation marks omitted).
We do not reach Petitioner’s uncertified issue. The judgment of the district
court is AFFIRMED.
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