Did the Ninth Circuit err under Title 28, United States Code, Section 2254(d)(1) in affirming that the jury instructions given by the California Supreme Court comported with the shared intent requirement set forth in Enmund?

QUESTIONS PRESENTED A: Enmund Error 1. The petitioner was charged as an aider and abettor in two separate murder cases that took place in Los Angeles, California. In neither case was there any direct evidence that petitioner was the perpetrator of the murders. This Court held in Enmund v. Florida, 458 U.S. 782 (1982), decided prior to petitioner’s trial, that when the death sentence was sought against an aider and abettor, the evidence had to establish that the aider and abettor killed, attempted to kill or intended that a life be taken.’ On direct appeal, the California Supreme Court held that the aiding and abetting instructions given to the jury were insufficient in that they did not state that the aider and abettor must share the specific intent of the perpetrator. However, that court held that the special circumstance instruction given the jury adequately conveyed the shared intent requirement set forth in Enmund. That instruction stated: “Tf the defendant was not the actual killer, it must be proved beyond a reasonable doubt that he [aider an abettor] intentionally aided, abetted, counseled, commanded, induced, solicited, requested or ' In Tison v. Arizona, 481 U.S. 137, 158 (1987), decided after petitioner’s trial, this Court held that the intent to kill element could be inferred from a aider and abettor being a major participant in the underlying felony coupled with a reckless indifference to human life. assisted the actual killer in the commission of the murder in the first degree before you are permitted to find the special circumstance of that first degree murder to be true as to the defendant.” 2 Appx. 191192, ? The jury was also instructed: “Ti]f a human being is killed by any one of several persons engaged in the perpetration of, or attempt to perpetrate, the crimes of burglary, robber and/or rape, who either directly and actively commit the act constituting such crime or crimes or who with knowledge of the unlawful purpose of the perpetrator of the crime or crimes promote, encourage, or instigate by act or advise its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.” (emphasis added). 2 Appx. 193 The California Supreme Court held that the jury instructions collectively advised the jury that petitioner had to share the intent to kill with the perpetrator of the murders. The questions presented are thus: 1. Did the Ninth Circuit err under Title 28, United States Code, Section 2254(d)(1) in affirming that the jury instructions given by the California Supreme Court comported with the shared intent requirement set forth in Enmund ? 2. Ifso, does this Court’s decision in Cabana v. Bullock, 474 US. 376 (1986), which required that evidence of the shared intent to murder of the aider and abettor appear in the record of the state court proceedings, mandate that this case be sent back to the state court to determine if such a finding exists? > “Appx.” refers to the 2 volume