David Leon v. Tom Felker

MEMORANDUM

The government appeals the district court’s partial grant of California state prisoner Leon’s 28 U.S.C. § 2254 petition. Leon challenged his jury convictions for second degree murder and discharging a firearm at an occupied motor vehicle, and the district court vacated his murder conviction. We have jurisdiction under 28 U.S.C. § 2253 (a) and we reverse.

Leon was charged in state court with murder and shooting at an occupied vehicle. The jury was instructed on both first and second degree murder. For the second degree murder charge, the court told the jury that Leon could be convicted if they found that he unlawfully killed Hernandez with malice aforethought or during the commission of a felony inherently dangerous to life, specifically, shooting at an occupied vehicle. The jury convicted Leon of second degree murder and shooting at an occupied vehicle, but did not indicate on which theory its murder verdict rested.

Leon’s direct appeals in state court were unsuccessful and his state habeas petitions were denied. The federal district court granted Leon’s habeas petition and reversed his murder conviction. Its decision was based on its conclusion that the…