John Lam v. Kathleen Dickinson

MEMORANDUM

California state prisoners John Lam, Jimmy Cooc and John Dich appeal from the district court’s denial of their petitions for habeas corpus challenging California first-degree murder convictions. They contend they were denied due process when the state trial court, in properly instructing the jury on the elements of first-degree murder and lesser included offenses, mistakenly gave the jury an additional partial instruction on felony murder.

The felony murder instruction should not have been given. The instruction appeared to permit a conviction for murder without a finding of malice and was in violation of the California Supreme Court’s decision in People v. Ireland, 70 Cal.2d 522 , 75 Cal.Rptr. 188 , 450 P.2d 580, 589-90 (1969). Federal law requires the State to prove every element of the offense with which the defendants were charged. See Middleton v. McNeil, 541 U.S. 433, 437 , 124 S.Ct. 1830 , 158 L.Ed.2d 701 (2004).

The California Court of Appeal, however, reviewed all of the instructions the jury received. The court concluded that there was no reasonable likelihood that the jury, in reliance on the felony murder instruction, would have failed to make the…