Prunty

MEMORANDUM **

Dung Van Mai (“Mai”) appeals from the district court’s denial of his § 2254 petition for habeas corpus relief. Mai was charged in California Superior Court with second degree attempted robbery, in violation of California Penal Code §§ 664, 211, 212.5(b) and 213(a)(2), false imprisonment by violence, in violation of California Penal Code § 236, and first degree murder in violation of California Penal Code § 187(a). Mai’s criminal liability for murder rested on a theory that he committed a provocative act that resulted in the death of his robbery accomplice. 1 See People v. Gilbert, 63 Cal.2d 690 , 47 Cal.Rptr. 909 , 408 P.2d 365, 373-74 (Cal.1965) (“When the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such act, the defendant is guilty of murder”), vacated on other grounds, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967).

The trial court instructed the jury using a modified version of California Pattern Jury Instruction CALJIC 8.12, entitled “Murder — Killer Other Than Perpetrator of Crime.” Mai alleges that the…