FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`SERGIO OCHOA,
`Petitioner-Appellant,
`
`
`
` No. 18-99007
`
`D.C. No.
`2:02-cv-07774-
`RSWL
`
`
`OPINION
`
`v.
`
`
`RONALD DAVIS, Warden, California
`State Prison at San Quentin,
`Respondent-Appellee.
`
`
`
`
`Appeal from the United States District Court
`for the Central District of California
`Ronald S.W. Lew, District Judge, Presiding
`
`Argued and Submitted March 22, 2022
`Pasadena, California
`
`Filed October 5, 2022
`
`Before: Johnnie B. Rawlinson, Kenneth K. Lee, and
`Lawrence VanDyke, Circuit Judges.
`
`Opinion by Judge VanDyke
`
`
`
`
`

`

`2
`
`
`
`
`
`OCHOA V. DAVIS
`
`SUMMARY*
`
`Habeas Corpus/Death Penalty
`
`The panel affirmed the district court’s denial of Sergio
`Ochoa’s habeas corpus petition under 28 U.S.C. § 2254
`challenging his conviction and death sentence imposed in
`California state court.
`
`The district court issued a certificate of appealability for
`two of Ochoa’s claims.
`
`In the first claim certified by the district court, Ochoa
`contended that his constitutional rights were violated under
`Wainwright v. Witt, 469 U.S. 412 (1985), and Witherspoon
`v. Illinois, 391 U.S. 510 (1968), because seven prospective
`jurors were improperly removed for cause based on their
`moral qualms about the death penalty that did not
`substantially impair their abilities to perform their duties in
`a capital case. The California Supreme Court, whose
`opinion on direct review is the last reasoned decision on this
`issue, concluded that both the prosecutor’s questioning of
`the challenged jurors and the excusals were proper.
`Applying the deferential review under the Antiterrorism and
`Effective Death Penalty Act (AEDPA) to the last reasoned
`state court decision, the panel held that the California
`Supreme Court’s conclusion was neither an unreasonable
`factual determination nor contrary to or an unreasonable
`application of clearly established Supreme Court precedent.
`
`
`* This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`

`

`
`
`
`OCHOA V. DAVIS
`
`3
`
`In the second claim certified by the district court, Ochoa
`contended that his trial counsel were ineffective because the
`excusals were based upon counsel’s failure to investigate,
`adequately object, and/or rehabilitate the prospective jurors.
`On this issue, the California Supreme Court’s denial of
`Ochoa’s second state petition is the last reasoned decision.
`The California Supreme Court summarily denied the
`ineffective assistance of counsel claim “on the merits.” The
`panel took this opportunity to make explicit what has to this
`point been implicit: the California Supreme Court’s
`summary denial is a decision on the merits and thus entitled
`to AEDPA deference. The panel held that Ochoa failed to
`overcome the presumption that defense counsel’s conduct
`fell within the wide range of professional assistance, and
`failed to show how trial counsel’s failure to object or try to
`rehabilitate some of the jurors prejudiced him. Applying
`AEDPA deference, the panel concluded that it was neither
`an unreasonable factual determination nor contrary to or an
`unreasonable application of clearly established Supreme
`Court precedent for the California Supreme Court to have
`determined that Ochoa’s counsel were not ineffective during
`voir dire. The panel held that the district court did not abuse
`its discretion in denying Ochoa’s request for an evidentiary
`hearing.
`
`Because jurists of reason could disagree with the district
`court’s denial of two uncertified claims, the panel expanded
`the certificate of appealability to cover those claims.
`
`In the first uncertified claim, Ochoa contended that his
`defense counsel were ineffective during the penalty phase
`for failing to present mitigating evidence, such as evidence
`of his brain damage and traumatic childhood. He also faults
`his counsel for failing to investigate and attack the
`prosecution’s aggravation evidence, including failing to
`
`

`

`OCHOA V. DAVIS
`
`4
`
`present a gang expert. Ochoa raised this claim in both of his
`state habeas petitions. The California Supreme Court
`summarily denied the claim “on the merits.” The panel held
`that Ochoa failed to rebut the presumption of counsel’s
`competence, and failed to establish prejudice with respect to
`counsel’s alleged deficiencies.
` Applying AEDPA
`deference, the panel concluded that the California Supreme
`Court’s conclusion was neither an unreasonable factual
`determination nor contrary to or an unreasonable application
`of clearly established Supreme Court precedent.
`
`In the second uncertified claim, Ochoa asserted that his
`death sentence violates the Eighth Amendment because he
`“suffered mental impairments that are as severe as mental
`retardation from the date of his arrest to the present[,]” and
`he is therefore ineligible for execution under Atkins v.
`Virginia, 536 U.S. 304 (2002). Ochoa raised this claim in
`his second state habeas petition. The California Supreme
`Court summarily denied the claim “on the merits.”
`Evaluating the criteria set forth in Atkins, and applying
`AEDPA deference, the panel held that it was neither an
`unreasonable factual determination nor contrary to or an
`unreasonable application of clearly established Supreme
`Court precedent for the California Supreme Court to have
`determined that Ochoa failed to demonstrate the onset of
`intellectual functioning and adaptive deficits as a minor.
`
`
`
`
`
`

`

`
`
`
`OCHOA V. DAVIS
`
`5
`
`COUNSEL
`
`
`C. Pamela Gomez (argued) and Ajay V. Kusnoor, Deputy
`Federal Public Defenders; Cuauhtémoc Ortega, Federal
`Public Defender; Office of the Federal Public Defender, Los
`Angeles, California; for Petitioner-Appellant.
`
`Nicholas Webster (argued), A. Scott Hayward and Analee J.
`Brodie, Deputy Attorneys General; James William
`Bilderback II, Senior Assistant Attorney General; Lance E.
`Winters, Chief Assistant Attorney General; Rob Bonta,
`Attorney General; Office of the Attorney General, Los
`Angeles, California; for Respondent-Appellee.
`
`
`
`OPINION
`
`VANDYKE, Circuit Judge:
`
`I. INTRODUCTION
`
`Petitioner Sergio Ochoa appeals from the district court’s
`denial of his habeas corpus petition under 28 U.S.C. § 2254,
`challenging his conviction and death sentence imposed in
`California state court. In 1992, Ochoa was convicted of two
`counts of first-degree murder and one count of attempted
`robbery. People v. Ochoa, 26 Cal. 4th 398, 415–16 (2001).
`The jury found true the allegations that a principal was
`armed with respect to all three offenses and that Ochoa
`personally used a firearm with respect to one of the murders
`and the attempted robbery. Id. The jury also found true the
`special circumstance allegations that Ochoa committed
`multiple murders and that a murder was committed while he
`was engaged in robbery. Id. The jury set the penalty at
`death. Id.
`
`

`

`6
`
`
`OCHOA V. DAVIS
`
`Ochoa’s conviction and death sentence were appealed to
`the California Supreme Court, which affirmed the judgment
`in its entirety. Id. at 464. Ochoa twice sought habeas relief
`from the California Supreme Court, but those petitions were
`denied. Ochoa also commenced federal habeas proceedings
`in the United States District Court for the Central District of
`California, but this petition was also denied. The district
`court issued a certificate of appealability for two of Ochoa’s
`claims (together, “the certified claims”): (1) that seven jurors
`were improperly removed for cause under Wainwright v.
`Witt, 469 U.S. 412 (1985), and Witherspoon v. Illinois,
`391 U.S. 510 (1968); and (2) that his trial counsel were
`ineffective for failing to object to the prosecutor’s use of
`misleading hypothetical scenarios during voir dire and for
`failing to rehabilitate prospective jurors challenged for
`cause. On appeal, Ochoa requests that we expand the
`certificate of appealability to include two additional claims
`(together, “the uncertified claims”): (1) that trial counsel
`were also ineffective for failing to investigate and present
`mitigating evidence during the penalty phase; and (2) that
`his execution would violate the Eighth Amendment because
`he suffers from cognitive impairments and mental illness
`that are equivalent to intellectual disability.
`
`We grant Ochoa’s request to expand the certificate of
`appealability with respect to the uncertified claims, given
`that the accuracy of the district court’s resolution of these
`claims is reasonably debatable. But we affirm the district
`court’s denial of Ochoa’s habeas corpus petition because he
`fails to establish that the California Supreme Court’s
`conclusion as to any of his claims was contrary to or
`constituted an unreasonable application of clearly
`established
`federal
`law or an unreasonable
`factual
`determination. See 28 U.S.C. § 2254(d)(1), (2).
`
`

`

`
`
`
`OCHOA V. DAVIS
`
`7
`
`II. BACKGROUND
`
`Appellant Sergio Ochoa was born in 1968 in Tijuana,
`Mexico. Three years later, he and his family moved to San
`Diego, and soon thereafter they moved to Los Angeles. In
`time, two of Ochoa’s older siblings joined a Los Angeles
`street gang called the 18th Street Gang. Ochoa followed suit,
`joining the gang’s Pee Wee Winos clique when he was
`eleven years old.
`
`A decade later, Ochoa was still a member of the 18th
`Street Gang, which was engaged in a gang “war” with the
`Crazy Riders. On December 15, 1989, while Ochoa was
`walking with a fellow 18th Street Gang member, a white
`Toyota pulled up alongside them, and a Crazy Rider
`nicknamed “Pompis” stepped out of the car and shot at them
`five times. The next day, the Crazy Riders shot an 18th
`Street Gang member. Later that same day, an 18th Street
`Gang member killed a Crazy Rider in retaliation. On the
`evening of January 3, 1990, Pompis, in the same white
`Toyota, pulled up alongside a car carrying three 18th Street
`Gang members and shot one of them in the head.
`
`Approximately three hours later, Ochoa drove up to a
`corner at which four fellow 18th Street Gang members were
`assembled and told them that he had just spotted the white
`Toyota. The four men, one of whom was armed with a
`double-barreled shotgun, got in Ochoa’s truck. While
`driving, Ochoa again spotted what he believed to be the
`Crazy Riders’ car, and he pulled up alongside it. Someone
`in Ochoa’s truck fired two shotgun blasts into the car, and
`Ochoa drove off. The car Ochoa believed was the Crazy
`Riders’ car turned out to be a white Datsun with a license
`plate number similar to that of the Crazy Riders’ white
`Toyota; the Datsun’s driver, a nineteen-year-old named
`
`

`

`OCHOA V. DAVIS
`
`8
`
`Pedro Navarette who was not involved with either gang, died
`of a shotgun wound to the head.
`
`Weeks later, on the evening of January 20, 1990, Ochoa
`convinced four fellow gang members to join him for a
`carjacking. After agreeing that a particular parked car was a
`good target, Ochoa and an accomplice approached the car’s
`driver side, while two other accomplices approached the
`passenger side. Ochoa, the only armed member of the group,
`placed a gun in driver Jose Castro’s face and ordered him to
`exit the vehicle. When Castro refused, Ochoa stated, “I’m
`gonna shoot him.” A passing motorist saw the tallest man in
`the group, who was standing on the driver side, shoot Castro;
`Ochoa was by far the tallest of the four assailants. When he
`returned to the car in which he and his accomplices had
`arrived, Ochoa told the getaway driver that he had shot
`Castro in the leg. Castro died from the gunshot wound; the
`bullet entered his left shoulder and exited the right side of
`his chest, which was consistent with the scene described by
`the eyewitness.
`
`Later that night, Ochoa and three male accomplices
`approached a man at a gas station. They kicked the man to
`the ground, and when the man stood up, Ochoa punched him
`and warned, “Give up the car, otherwise I’m going to shoot
`you.” An accomplice pressed a gun against the man’s torso,
`Ochoa entered the man’s car and sat down in the driver’s
`seat, and the four drove off.
`
`Ochoa was arrested the next day. During questioning,
`Ochoa denied having any knowledge of the Navarette
`killing. After that interview, Ochoa, who already had many
`18th Street Gang tattoos, got a tattoo over his eye of the
`number “187,” the California Penal Code section that
`proscribes murder. In February 1990, Ochoa admitted that
`on the night of the Navarette murder he drove the shooter
`
`

`

`9
`
`OCHOA V. DAVIS
`
`
`
`and others, but he claimed that he did not know the shooter
`was armed until he heard the gunshot. In March 1990, the
`eyewitness to the Castro murder was shown a photographic
`lineup that included an image of Ochoa, but the witness was
`unable to identify Ochoa as the shooter. In September of that
`year, however, the eyewitness selected Ochoa from a live
`lineup, identifying him as the shooter.
`
`On August 31, 1992, Ochoa was convicted of two counts
`of first-degree murder and one count of attempted second-
`degree robbery in Los Angeles County Superior Court. At
`the penalty phase, the jury fixed the penalty to be imposed
`as death, and on December 10, 1992, the court sentenced
`Ochoa to the same. On August 6, 2001, the California
`Supreme Court affirmed Ochoa’s convictions and sentence
`on direct appeal. Ochoa, 26 Cal. 4th at 464. On April 29,
`2002, the U.S. Supreme Court denied Ochoa’s petition for a
`writ of certiorari.
`
`Ochoa filed his first state habeas petition on February 20,
`2001. The California Supreme Court summarily denied the
`petition “on the merits” on August 21, 2002. Ochoa filed a
`federal habeas petition in the district court on September 19,
`2003. Ochoa returned to the state court with a second state
`habeas petition on December 15, 2003, and the district court
`stayed the federal proceedings. The California Supreme
`Court summarily denied Ochoa’s second state petition “on
`the merits” and on procedural grounds on December 21,
`2010.
`
`After his second state habeas petition was denied, Ochoa
`filed the operative amended petition with the district court.
`On July 8, 2014, the district court granted in part and denied
`in part the State’s motion to dismiss. Ochoa filed a motion
`for reconsideration, which the district court likewise granted
`in part and denied in part. On August 13, 2018, the district
`
`

`

`OCHOA V. DAVIS
`
`10
`
`court denied all of Ochoa’s remaining claims for relief on
`the merits. The district court issued a certificate of
`appealability as to the certified claims.
`
`On September 10, 2018, Ochoa filed a notice of appeal,
`reserving the right to request that we expand the certificate
`of appealability. Ochoa challenges the district court’s
`determinations regarding the certified claims and requests
`that we expand the certificate of appealability to include the
`uncertified claims.
`
`III. JURISDICTION AND STANDARD OF REVIEW
`
`We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
`2253. We review the district court’s denial of a habeas
`petition de novo and its findings of fact for clear error. See
`Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010).
`Because Ochoa’s federal petition was filed after April 24,
`1996, the Antiterrorism and Effective Death Penalty Act
`(“AEDPA”) governs our review. See Murray v. Schriro,
`745 F.3d 984, 996 (9th Cir. 2014). Under AEDPA, habeas
`relief may not be granted unless the state court’s decision
`was: (1) “contrary
`to, or
`involved an unreasonable
`application of, clearly established Federal
`law, as
`determined by the Supreme Court of the United States;” or
`(2) “based on an unreasonable determination of the facts in
`light of the evidence presented in the [s]tate court
`proceeding.” 28 U.S.C. § 2254(d)(1), (2). We apply the
`deferential review under AEDPA to the last reasoned state
`court decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803–
`04 (1991); Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th
`Cir. 2012).
`
`Under § 2254(d)(1), “clearly established” “refers to the
`holdings, as opposed to the dicta, of [the Supreme Court’s]
`decisions as of the time of the relevant state-court decision.”
`
`

`

`11
`
`OCHOA V. DAVIS
`
`
`
`Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). A state
`court’s decision is contrary to clearly established federal law
`“if the state court arrives at a conclusion opposite to that
`reached by [the Supreme] Court on a question of law or if
`the state court decides a case differently than [the Supreme]
`Court has on a set of materially indistinguishable facts.”
`Williams v. Taylor, 529 U.S. 362, 413 (2000) (O’Connor, J.,
`concurring). A state court’s decision is an unreasonable
`application of clearly established federal law “if the state
`court identifies the correct governing legal principle from
`[the Supreme] Court’s decisions but unreasonably applies
`that principle to the facts of the [petitioner’s] case.” Id. “The
`more general the rule, the more leeway courts have in
`reaching outcomes
`in case-by-case determinations.”
`Harrington v. Richter, 562 U.S. 86, 101 (2011) (cleaned up).
`
`IV. DISCUSSION
`
`Ochoa presents four claims on appeal, two certified and
`two uncertified. We begin by addressing the certified claims
`and then turn to the uncertified claims.
`
`A. The Certified Claims
`
`1. First Certified Claim: Witt/Witherspoon Claim
`
`Ochoa contends that his constitutional rights were
`violated because seven prospective jurors were improperly
`removed for cause based on their moral qualms about the
`death penalty that did not substantially impair their abilities
`to perform their duties in a capital case under Witt and
`Witherspoon.
`
`On this issue, the California Supreme Court’s opinion on
`direct review in Ochoa, 26 Cal. 4th 398, is the last reasoned
`decision. In that opinion, the California Supreme Court
`
`

`

`OCHOA V. DAVIS
`
`12
`
`concluded that both the prosecutor’s questioning of the
`challenged jurors and the excusals were “proper.” Id. at 428.
`Specifically:
`
`Prospective Juror Linda H.’s comments
`revealed her unambiguous opposition to the
`death penalty, and the trial court properly
`excused her. Substantial evidence likewise
`supports the exclusion of the other jurors. To
`the extent their responses could support
`multiple inferences, we defer to the trial
`court’s determination of their unfitness to
`serve.
`
`Id. at 432.
`
`The district court considered the California Supreme
`Court’s rejection of this claim and found that it was
`reasonable under AEDPA because the record supported the
`conclusion that the challenged jurors were substantially
`impaired.
` The district court
`thus denied Ochoa’s
`Witt/Witherspoon claim.
`
`Because the California Supreme Court’s conclusion was
`neither an unreasonable factual determination nor contrary
`to or an unreasonable application of clearly established
`Supreme Court precedent, we affirm the district court. See
`28 U.S.C. § 2254(d)(1), (2).
`
`a. Applicable Law
`
`the
`the Supreme Court allowed
`In Witherspoon,
`exclusion of jurors who “would automatically vote against
`the imposition of capital punishment without regard to any
`evidence that might be developed at the trial . . . .” 391 U.S.
`at 522 n.21. In Witt, the Supreme Court replaced
`
`

`

`13
`
`OCHOA V. DAVIS
`
`
`
`Witherspoon’s “automatic vote” test with a different
`formulation: a juror in a capital case is properly excluded for
`cause where the juror’s views on capital punishment would
`“prevent or substantially impair the performance of his
`duties as a juror in accordance with his instructions and his
`oath.” 469 U.S. at 424 (cleaned up). A juror’s opposition to
`the death penalty is insufficient grounds for exclusion if the
`juror can set aside this view in making a decision with regard
`to penalty. See Lockhart v. McCree, 476 U.S. 162, 176
`(1986). “[I]t is the adversary seeking exclusion who must
`demonstrate, through questioning, that the potential juror
`lacks impartiality.” Witt, 469 U.S. at 423. At the same time,
`a juror’s bias does not have to be proved with “unmistakable
`clarity.” Id. at 424. When there is ambiguity in the
`prospective juror’s statements, the trial court is “entitled to
`resolve it in favor of the State.” Id. at 434.
`
`In determining whether juror exclusion for bias is
`unreasonable, a trial court’s findings of juror partiality are
`entitled to special deference. See Uttecht v. Brown, 551 U.S.
`1, 9 (2007) (“Deference to the trial court is appropriate
`because it is in a position to assess the demeanor of the
`venire, . . . a factor of critical importance in assessing the
`attitude and qualifications of potential jurors.”); see also
`Morgan v. Illinois, 504 U.S. 719, 730 (1992) (“The adequacy
`of voir dire is not easily the subject of appellate review
`. . . .”). Such deference is necessary for practical reasons:
`
`[M]any veniremen simply cannot be asked
`enough questions to reach the point where
`their bias has been made “unmistakably
`clear”; these veniremen may not know how
`they will react when faced with imposing the
`death sentence, or may be unable
`to
`articulate, or may wish to hide their true
`
`

`

`14
`
`
`OCHOA V. DAVIS
`
`feelings. Despite this lack of clarity in the
`printed record, however,
`there will be
`situations where the trial judge is left with the
`definite impression that a prospective juror
`would be unable to faithfully and impartially
`apply the law.
`
`Witt, 469 U.S. at 424–26. Consequently, the Supreme Court
`has admonished the lower courts to “respect the limited role
`of federal habeas relief in this area.” Uttecht, 551 U.S. at 10.
`In addition, § 2254(d) builds on the deference owed to the
`trial court by requiring us to review the California Supreme
`Court’s determination through a “deferential lens.” Cullen
`v. Pinholster, 563 U.S. 170, 190 (2011) (cleaned up).
`
`b. Analysis
`
`The prospective jurors were questioned in nine groups of
`eleven to seventeen people. Each prospective juror
`submitted a juror questionnaire, and during voir dire was
`questioned first by the trial court, then by defense counsel,
`and finally by the prosecutor. After the first two groups had
`been questioned, the trial court granted the defense some
`“rebuttal” voir dire. Each side had thirty minutes for
`questioning, except for the last group, which was the
`smallest, so each side had twenty minutes. During each
`group’s voir dire, the prosecutor explained the felony-
`murder and accomplice-liability doctrines
`that were
`applicable to the charges in the case. The prosecutor used
`hypotheticals to illustrate how the doctrines operate.
`
`Ochoa contends that the trial court improperly removed
`the following seven prospective jurors from four different
`groups: Gertrude W., Patrice V., Alicia B., Linda H., Martha
`C., Arthur R., and Lynn J. Ochoa claims that the jurors gave
`disqualifying answers only after the prosecutor posed
`
`

`

`15
`
`OCHOA V. DAVIS
`
`
`
`hypotheticals that were “highly misleading” because they
`(1) “improperly described” the state-law framework to the
`jury by introducing “the theory of accidental, aiding and
`abetting felony murder” without clarifying that a defendant
`guilty of such a crime would be categorically ineligible for
`death; and (2) described a scenario that was a lot less
`blameworthy than Ochoa’s crime as they described “an
`unintentional or accidental murder.” Ochoa argues no
`deference should be applied to the trial court’s decision to
`remove the jurors because the state law principles were
`improperly described to them. Ochoa also claims that the
`California Supreme Court unreasonably applied clearly
`established Supreme Court precedent, when it placed the
`burden of showing that the jurors were substantially
`impaired not on
`the prosecutor—the party seeking
`exclusion—but on the defense.
`
`We address Ochoa’s contentions as to each challenged
`juror based on the order in which their respective groups
`were questioned during voir dire, beginning with Getrude W.
`who was in the first group of prospective jurors, then Patrice
`V. and Alicia B. who were in the second, then Linda H. who
`was in the sixth group, and finally, Martha C., Arthur R., and
`Lynn J. who were in the eighth group.1
`
`
`1 The State argues that Ochoa’s Witt/Witherspoon claim must be
`limited to the first three of the seven challenged jurors—Gertrude W.,
`Patrice V., and Alicia B.—because the prosecutor modified her
`hypotheticals in later groups and Ochoa fails to explain how those
`hypotheticals were misleading. With respect to Ochoa’s challenge to the
`first three jurors, the State argues that the claim is procedurally defaulted
`because the state court denied it relying on an adequate and independent
`state ground: counsel’s failure to make a contemporaneous objection to
`the prosecutor’s hypotheticals. Because we affirm the district court on
`the merits with respect to each of the seven prospective jurors, we need
`
`
`

`

`16
`
`
`OCHOA V. DAVIS
`
`i. Gertrude W.
`
`Gertrude’s panel was first apprised of the facts of the
`case during the voir dire by Ochoa’s counsel. The
`prosecutor, who went next, also touched on the facts of the
`case. The prosecutor then discussed the aiding and abetting
`principle and gave a bank
`robbery hypothetical.
`Specifically, she described a situation where three people
`conspired to rob a bank, one acted as a getaway driver, the
`other as the lookout, and the third went into the bank, pointed
`a gun, and took the money. She noted that all three people
`can be guilty of bank robbery.
`
`The prosecutor then described the second murder “that’s
`alleged to have occurred on a different date, different time,
`under different circumstances” and that also involved “a
`somewhat complex legal principle,” specifically, the felony-
`murder rule. The prosecutor pointed out that under this rule,
`even if a bank robber’s gun accidentally went off during a
`struggle with a security guard, the robber would be guilty of
`first-degree murder, even though there was no intent to kill.
`The prosecutor explained that the felony-murder rule
`
`even reaches out to the people in the car, the
`driver and the person standing by the door,
`and in some situations they can be guilty of
`first[-]degree murder, too. The point I’m
`trying to make is under our law with the
`theory of first[-]degree murder, it’s not
`necessary that an intent to kill be proven to
`
`
`not address the State’s alternative procedural arguments. See Forest
`Guardians v. Dombeck, 131 F.3d 1309, 1313 n.1 (9th Cir. 1997).
`
`

`

`
`
`
`OCHOA V. DAVIS
`
`17
`
`find the defendant guilty of first[-]degree
`murder too.
`
`Defense counsel did not object
`hypotheticals.
`
`to
`
`the prosecutor’s
`
`The prosecutor then moved on from the guilt phase to the
`penalty phase. She repeated that one of the murders and one
`of the special circumstances making Ochoa eligible for the
`death penalty involved the felony-murder rule. She asked
`whether knowing more about the charges, anybody felt that
`the death penalty “is an option.” Gertrude spoke up,
`explaining that the death penalty “could be an option . . .
`when somebody” acts “deliberately” or “premeditated[ly].”
`This view was consistent with her answers in the
`questionnaire. But Getrude later explained that based on the
`circumstances of Ochoa’s case, the death penalty “would not
`be an option for [her].” When pressed by the prosecutor and
`the trial court, she unequivocally confirmed her opposition.
`
`When the prosecution asked to remove Gertrude for
`cause, Ochoa’s counsel objected. Defense counsel pointed
`out that there was “a divergence” between Gertrude’s
`questionnaire and oral responses, with her questionnaire
`making her “almost” eligible for challenge for cause by
`defense, “but when she was questioned in court, she
`indicated she could be, in fact, open to the evidence and she
`doesn’t think she would consider it, but she didn’t rule out
`that possibility.” The trial judge disagreed:
`
`I tried to pin her down at the end and I think
`I did. Frankly, I thought I might be able to
`rehabilitate her, but I couldn’t. I am satisfied
`that in this case she is of a state of mind that
`she would not consider a death verdict. And
`I think that’s good for a challenge for cause.
`
`

`

`18
`
`
`OCHOA V. DAVIS
`
`With this background in mind, we turn to Ochoa’s
`arguments on appeal. Ochoa contends that the prosecutor’s
`hypothetical was “most egregious and misleading” when she
`spoke to the first group of prospective jurors, including
`Gertrude. But the prosecutor’s hypothetical was neither
`“egregious” nor “misleading.” Rather, the prosecutor’s
`hypothetical accurately described a relevant principle of
`California law for the jurors. To be sure, the prosecutor
`discussed an accidental or unintentional murder by a
`triggerman through a felony-murder hypothetical. She also
`mentioned that a non-triggerman can be guilty of first-degree
`murder “in some situations.” As the prosecutor explained,
`the “point” of her hypothetical was that under a felony-
`murder theory, “it’s not necessary that an intent to kill be
`proven to find the defendant guilty of first[-]degree murder.”
`This is both an accurate statement of California law and a
`principle relevant to this case because the prosecutor did not
`need to prove intent in Castro’s homicide. And while it is
`true that under California law a getaway driver may be guilty
`of first-degree murder, but not eligible for the death penalty,
`see People v. Armstrong, 6 Cal. 5th 735, 763 (2019) (“Some
`getaway drivers, although guilty of first[-]degree felony
`murder, may not even be death eligible.”), the prosecutor’s
`hypothetical was introduced while addressing the guilt phase
`of trial, not the penalty phase. Moreover, any erroneous
`impression the prosecutor may have created was dispelled
`by both the defense and prosecution referencing the facts of
`Ochoa’s case—the jury was aware that Ochoa was not
`alleged to be an aider or abettor with respect to any
`accidental shooting in the course of a felony. In short, the
`prosecutor’s explanation of aiding and abetting and felony-
`murder principles was an accurate statement of California
`law and did not misrepresent the state-law framework. See
`Ochoa, 26 Cal. 4th at 431; see also People v. Billa, 31 Cal.
`4th 1064, 1068 (2003) (“Th[e] felony-murder rule covers a
`
`

`

`OCHOA V. DAVIS
`
`
`
`variety of unintended homicides resulting from reckless
`behavior, or ordinary negligence, or pure accident . . . .”
`(cleaned up)).
`
`19
`
`With respect to Ochoa’s argument that the prosecutor’s
`hypothetical described a defendant that was a lot less
`blameworthy, Ochoa relies on the California Supreme
`Court’s opinion in Armstrong for the proposition that with
`“sufficiently mild hypothetical scenarios, many competent
`jurors might say they would be quite likely to vote for life
`without the possibility of parole[,]” but that does not mean
`“that the same juror would not vote for death under more
`aggravating circumstances.” 6 Cal. 5th at 756. In
`Armstrong, the defendant was charged with murder,
`kidnapping, robbery, rape, and torture, with six special
`circumstances and two sentencing enhancements. See id. at
`748. During voir dire, the prosecutor presented potential
`jurors with several hypotheticals that involved accomplice
`liability, including a bank robbery hypothetical with a
`getaway driver, a lookout, and the actual killer who went
`inside and shot someone. See id. at 752–53. The California
`Supreme Court found a Witt/Witherspoon violation because
`the trial court excused four jurors for cause, erroneously
`focusing on “whether they would be equally willing to
`impose death on an aider and abettor as on an actual killer,
`rather than on whether they could follow the law and
`consider death as an option.” Id. at 757. Ochoa argues that
`like in Armstrong, the prosecutor in his case questioned the
`potential jurors’ view on the death penalty application
`“under significantly less aggravating circumstances than
`those presented in her case-in-chief.” Consequently, the
`jurors’ answers were not informative as to the question
`whether they would be able to fulfill their duties in this case
`by considering both penalty options, and those answers
`could not be used to find the jurors substantially impaired.
`
`

`

`20
`
`
`OCHOA V. DAVIS
`
` First,
`Ochoa’s argument fails for two reasons.
`Armstrong is not clearly established United States Supreme
`Court precedent.
` Second, Armstrong
`is plainly
`distinguishabl