Kenneth Duane ROY, Petitioner-Appellant, v. James GOMEZ; John Van De Kamp; And William Merkle, Et Al., Respondents-Appellees

This is an appeal from the denial of a petition for habeas corpus. Petitioner Kenneth Duane Roy challenges his state court convictions of robbery and first-degree murder for aiding and abetting a felony murder. He contends the state trial court erred by failing to instruct the jury on the specific intent that is a necessary element of aiding and abetting under California law. The district court agreed, but held the error harmless. A divided panel of this court affirmed. We granted en banc review, and now reverse.

I.

A.

Petitioner Kenneth Duane Roy and his friend Jesse McHargue met Archie Mannix and James Clark outside a liquor store in Gridley, California. The four began drinking beer. Several hours later, a Gridley police officer saw Mannix’s truck narrowly miss a utility pole as it backed up in the store’s parking lot. The officer stopped the truck and called another officer to assist. Mannix and Clark were both intoxicated. McHargue and Roy appeared to be sober, but neither had a driver’s license. The officers told the men not to drive the truck and left. Two hours later, the truck was gone. The officers found it nose down in a ditch, with the bodies of Clark and Mannix…