NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 3 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT DE ARCOS, No. 15-56171

Petitioner-Appellant, D.C. No. 2:13-cv-00322-DMG-AGR v.

CLARK E. DUCART, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Submitted July 13, 2018** Pasadena, California

Before: IKUTA and N.R. SMITH, Circuit Judges, and McNAMEE,*** District Judge.

Petitioner Robert De Arcos appeals the district court’s denial of his habeas

corpus petition. A jury found De Arcos guilty of second degree murder and found

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Stephen M. McNamee, Senior United States District Judge for the District of Arizona, sitting by designation. various firearm and gang enhancements to be true. De Arcos contends that the

California Court of Appeal unreasonably applied Jackson v. Virginia, 443 U.S. 307

(1979), because the evidence was insufficient to prove his guilt beyond a

reasonable doubt. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253,

and we affirm.

“[W]e review de novo the district court’s decision to grant or deny a petition

for a writ of habeas corpus.” Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.

2004). “Because [De Arcos] filed his federal habeas petition after April 24, 1996,

his petition is governed by the Antiterrorism and Effective Death Penalty Act of

1996 (‘AEDPA’), 28 U.S.C. § 2254.” Cheney v. Washington, 614 F.3d 987, 993

(9th Cir. 2010). Under AEDPA, we must deny habeas relief with respect to any

claim adjudicated on the merits in a state court proceeding unless the proceeding

“(1) 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; or (2) resulted in a decision that was based on an

unreasonable determination of the facts….” 28 U.S.C. § 2254(d).

When considering a claim based on insufficiency of the evidence, we view

the evidence in the light most favorable to the prosecution. Long v. Johnson, 736

F.3d 891, 896 (9th Cir. 2013) (citation omitted). “To grant habeas relief, we must

conclude that the state court’s determination that a rational jury could have found

2 15-56171 that there was sufficient evidence of guilt…was objectively unreasonable.” Id.

(internal quotations and citation omitted).

Viewing the evidence in the light most favorable to the prosecution, the

California Court of Appeal reasonably held that a rational jury could have found,

beyond a reasonable doubt, that De Arcos committed second degree murder as an

aider and abettor.1 A rational jury could have found that (1) De Arcos was one of

the two shooters, based upon numerous witnesses who identified him as a shooter;

(2) De Arcos had a motive to kill Victor Nunez, based upon the expert testimony

of Detective Joseph Fender; (3) De Arcos fled after the shooting, based upon the

testimony of Deputy Miguel Llaury; and (4) De Arcos evidenced a consciousness

of guilt for the murder, based upon recorded conversations between him and his

girlfriend, Lorena. Therefore, a rational jury could find that De Arcos knew of the

fatal shooter’s unlawful purpose to kill Victor, and with the intent of committing or

1 In evaluating a conviction in state court, we refer to the substantive elements of the crime as defined by state law. Jackson, 443 U.S. at 324 n.16. “Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements—i.e., willfulness, premeditation, and deliberation—that would support a conviction of first degree murder.” People v. Nieto Benitez, 840 P.2d 969, 974 (Cal. 1992) (citations omitted). Malice aforethought may be expressed or implied. Id. at 975 (citing Cal. Penal Code § 188). Express malice is an intent to kill; “[m]alice is implied when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses.” People v. Gonzalez, 278 P.3d 1242, 1251 (Cal. 2012).

3 15-56171 facilitating the murder, aided in the commission of the crime. See People v.

Prettyman, 14 Cal. 4th 248, 259 (1996).

We reject De Arcos’s argument that we should resolve conflicting evidence

in favor of his innocence. See Jackson, 443 U.S. at 326 (“[A] federal habeas corpus

court faced with a record of historical facts that supports conflicting inferences

must presume – even if it does not affirmatively appear in the record – that the trier

of fact resolved any such conflicts in favor of the prosecution, and must defer to

that resolution.”); see also United States v. Stewart, 420 F.3d 1007, 1015 (9th Cir.

2005) (explaining that in reviewing sufficiency of the evidence, “[w]e must respect

the province of the jury to ascertain the credibility of the witnesses, resolve

evidentiary conflicts, and draw reasonable inferences from proven facts, by

assuming that the jury resolved all such matters in a manner which supports the

verdict.” (internal quotations and citation omitted)).

Finally, we reject De Arcos’s argument that the jury made an inconsistent

determination when it found that De Arcos personally used, and personally and

intentionally discharged, a firearm, but that De Arcos did not personally and

intentionally discharge a firearm which proximately caused great bodily and injury

death to Victor Nunez. The evidence is sufficient to sustain these findings, and the

findings are not inconsistent because the shell casing evidence showed two

shooters and that Victor had been shot three times.

4 15-56171 Viewing the evidence in the light most favorable to the prosecution, the

California Court of Appeal’s determination that a rational jury could have found

that there was sufficient evidence of De Arcos’s guilt was not objectively

unreasonable. The district court properly concluded that De Arcos was not entitled

to habeas relief.

AFFIRMED.

5 15-56171