Drayton

MEMORANDUM *

Tried and convicted in California state court of first degree murder with the “special circumstance” that it was committed in the course of a robbery, Robert Anthony Drayton (“Drayton”) appeals the denial of his habeas corpus petition, arguing: (1) insufficient evidence to support the “special circumstance” verdict; (2) fundamentally erroneous jury instructions; and (8) violation of his due process right against double jeopardy for the court’s failure to record the jury’s original verdict. Applying the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254 (d)(1), (2) (see Rios v. Rocha, 299 F.3d 796 , 799 n. 4 (9th Cir.2002)), we affirm.

Sufficiency of the Evidence

We have little difficulty with Dray-ton’s claim that the evidence was insufficient to establish that his murder of Cae-dle Lenker was not merely “incidental” to his theft of her jewelry. In California, “[rjobbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” CaLPenal Code § 211. Robbery constitutes a “special circumstance” to a murder if “[t]he murder was committed…