Michael Durrell Ward v. AMY MILLER, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL DURRELL WARD,
Petitioner - Appellant,
v.
AMY MILLER, Warden,
Respondent - Appellee.
No. 13-56805
D.C. No. 5:12-cv-02043-VAP-SH
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted November 2, 2015
Pasadena, California
Before: SCHROEDER, PREGERSON, and FRIEDLAND, Circuit Judges.
Michael Ward appeals the district court’s denial of his petition for writ of
habeas corpus, in which he asserted instructional error and ineffective assistance of
counsel. Ward was first arrested for pimping minors, including the victim in this
case. From jail, Ward made a series of phone calls to a number of his associates.
FILED
JAN 21 2016
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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During these phone calls, he instructed them on a plan to kill the victim to keep her
from talking to the police about his pimping activities. Unknown to Ward and his
associates, the police recorded these conversations and ultimately discovered the
plan to kill the victim.
At Ward’s trial, the Riverside County Superior Court gave an erroneous jury
instruction. Ward’s trial counsel did not object to this jury instruction.
Additionally, Ward’s counsel elicited damaging testimony from the prosecution’s
gang expert. Ward was subsequently convicted of conspiracy to commit murder.
The California Court of Appeal affirmed Ward’s conviction. Ward then
filed a federal habeas petition, which the district court denied. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).
Reviewing the district court’s analysis de novo, we affirm the district court’s
denial of Ward’s habeas petition. McNeely v. Blanas, 336 F.3d 822, 826 (9th Cir.
2003).
1. Under California law, conspiracy to commit murder cannot be based on a
theory of implied malice. People v. Swain, 909 P. 2d 994, 998–99, 1001–02 (Cal.
1996). The California Court of Appeal asserted—and both parties agree—that it
was error to instruct the jury with the portion of CALCRIM 520 that stated that
implied malice is sufficient to establish an intent to kill. Since the State had the
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burden to prove specific intent—as opposed to implied malice—as an element of
the crime of conspiracy to commit murder, the erroneous jury instruction violated
Ward’s due process rights and thus rises to the level of a constitutional violation.
However, the erroneous jury instruction did not have a “substantial and
injurious effect” on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619,
637–38 (1993). During closing arguments, the prosecutor explicitly asserted that it
was necessary for the jury to find that Ward intended for his associate to kill the
victim. This supported the prosecutor’s prior presentation of evidence during
closing arguments that Ward did indeed intend for his associate to kill the victim.
Moreover, when CALCRIM 520 is read in conjunction with CALCRIM
5631—with which the jury was also instructed—and the prosecutor’s closing
statements, it was clear that a specific intent to kill was the requisite state of mind
to convict Ward for conspiracy to commit murder, and not simply the lower
standard of implied malice. Therefore, the erroneous jury instruction did not
prejudice Ward so as to create a substantial and injurious effect on the verdict.
1 CALCRIM 563 stated, in relevant part, “Michael Ward is charged in Count
1 with conspiracy to commit murder. To prove that the defendant is guilty of this
crime, the People must prove [inter alia] that . . . the defendant intended to agree
and did agree with one or more of the other defendants to intentionally and
unlawfully kill; [a]t 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 intentionally and unlawfully kill.”
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Brecht, 507 U.S. at 637–38. As a result, the California Court of Appeal decision is
not objectively unreasonable nor contrary to established Supreme Court precedent.
Williams v. Taylor, 529 U.S. 362, 409–10 (2000); 28 U.S.C. § 2254(d).
2. Ward argues that he was denied his Sixth Amendment right to effective
assistance of counsel when his defense attorney, James Curtis, failed to object to
CALCRIM 520. While Curtis’s failure to object to a faulty jury instruction may
constitute deficient performance, Ward is unable to demonstrate that this failure
resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). The
instructions as a whole, coupled with the prosecutor’s statements, made clear that
the jury needed to find that Ward intended to kill the victim to convict Ward of
conspiracy to commit murder. Ward is unable to show a reasonable probability
that but for Curtis’s error, the outcome of the trial would have been different, or
that he was denied a fair trial. Id. at 694.
Ward also fails to demonstrate that Curtis’s cross-examination of Phillip
Gomez, the prosecution’s gang expert, was deficient and resulted in prejudice.
While Gomez’s testimony about whether or not there was an agreement and intent
to kill the victim may have been damaging to Ward, Curtis’s subsequent questions
to Gomez appear to have been an attempt to impeach this testimony. As such, this
line of questioning, including the attempt to undermine Gomez’s crediblity, fell
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“within the wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689.
Ward is also unable to prove that Curtis’s cross-examination of Gomez was
prejudicial. During the trial court’s instructions to the jury, the judge stated that
the jurors were not required to accept expert witnesses’s opinions, and that the
jurors were to disregard any expert witness opinion that they found to be
unbelievable, unreasonable, or unsupported by the evidence. The evidence
demonstrates that Ward repeatedly gave instructions to his associates about the
details of the plan to kill the victim, including who would be involved, where the
victim lived, which weapon to use, and how to make it look like a robbery. These
conversations were captured in recordings and decoded by several members of the
plan. The police also recovered the weapon that was discussed in these
conversations. In light of the overwhelming evidence against Ward, Ward does not
show that the outcome of the trial would have been different if Gomez’s testimony
had been excluded. The California Court of Appeal decision was not contrary to
Supreme Court precedent.
We AFFIRM the district court’s denial of Ward’s habeas petition.
AFFIRMED.
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