Vived

*449 MEMORANDUM **

Gregory Vived was convicted of second degree murder and conspiracy to commit assault likely to produce great bodily injury (“assault GBI”). He seeks habeas relief on seven grounds. We affirm the district court’s denial of his petition.

1. Vived’s first argument — that the trial court erred when it failed to sua sponte instruct the jury on the lesser charge of conspiracy to commit simple assault — is unpersuasive. Because there is no “clearly established” Supreme Court law that requires giving a lesser included offense instruction in a non-capital case, we cannot grant habeas relief. See 28 U.S.C. § 2254 (d)(1). In any event, the lesser included offense instruction of simple assault was not supported by substantial evidence. See People v. Breverman, 19 Cal.4th 142, 162 , 77 Cal.Rptr.2d 870 , 960 P.2d 1094 (1998) (stating that a court has a duty to instruct sua sponte on a lesser included offense only if the offense is supported by substantial evidence).

2. Vived argues that the trial court erred when it refused to give a pinpoint instruction provided by Vived on the natural and probable consequences doctrine. Vived’s jury instruction misstated California law.…