Anastacio Lara v. S. Ryan, Warden

Appellant Anastacio Lara (“Lara”) was convicted by a jury of two counts of attempted murder and two counts of non-aggravated mayhem. The jury was instructed that it could convict him of attempted murder under either a proper theory of express malice or an improper implied-malice theory. Lara brought a petition for habeas corpus under 28 U.S.C. § 2254 , alleging that the flawed jury instruction made it impossible to determine whether he was convicted under the correct legal theory. The district court denied habeas relief, and we affirm.

I

The California Court of Appeal determined, and Lara does not challenge, the following summary of the facts:

The trial court instructed the jury as to attempted murder in accordance with California Jury Instructions — Criminal (“CALJIC”) No. 8.66, as follows:

However, the trial court defined “malice aforethought” by instructing the jury under CALJIC No. 8.11, which includes both an express and implied theory. According to the trial court:

The prosecutor relied upon the implied-malice instruction as well during closing argument:

The jury convicted Lara of two counts of attempted murder and two counts of non-aggravated mayhem. It also made a…