Stephen BENNETT, Petitioner-Appellant, v. Ron BARNES, Warden, Respondent-Appellee, 598 F. App'x 526

MEMORANDUM Stephen Bennett appeals the district court’s denial of his petition for habeas corpus under 28 U.S.C. § 2254. He was convicted in state court of felony murder with special circumstances, CaLPenal Code § 190.2(d), and sentenced to life without the possibility of parole. On the issue for which the district court granted a certificate of appealability, Bennett argues that the evidence of the element of “reckless indifference to human life” under § 190.2(

d) was insufficient to support a conviction under Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and that the California Court of Appeal unreasonably applied Jackson in holding otherwise. We review the district court’s decision de novo, and we affirm. According to the California Supreme Court, the

interpretation of § 190.2(d)’s “reckless indifference to human life” element derives from Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). People v. Estrada, 11 Cal.4th 568, 46 Cal.Rptr.2d 586, 904 P.2d 1197, 1201 (1995). “Tison ... instructs that the culpable mental state of ‘reckless indifference to life’ is one in which the defendant ‘knowingly engag[es] in criminal activities known to carry a grave risk of death.’ ” Id. at 1202 (latter alteration in original) (quoting Tison, 481 U.S. at 157, 107 S.Ct. 1676).

The California Court of Appeal did not unreasonably determine that a rational jury could have concluded that Bennett was subjectively aware of a grave risk of death. There is evidence showing, or at least supporting an inference, that Bennett knew that his accomplices planned to commit an armed robbery and that he failed to render aid to the injured victim. The state court did not unreasonably determine that the jury could have interpreted the secretly recorded conversation between Bennett and one of the shooters to mean that Bennett was aware that the shooters would be armed.

And the jury could have inferred that Bennett heard, along with several witnesses, the fatal shots, knew that the victim was injured, and drove the shooters home rather than rendering aid to the victim. We construe Bennett’s briefing of an uncertified issue as a motion to expand the certificate of appealability, Ninth Cir. R. 22-l(e), and deny it. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.