UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RENO, No. 17-99004 Petitioner-Appellant, D.C. No. v. 2:96-cv-02768- CBM RONALD DAVIS, Warden, California State Prison at San Quentin, Respondent-Appellee. OPINION

Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted March 22, 2022 Pasadena, California

Filed August 19, 2022 Before: Consuelo M. Callahan, Andrew D. Hurwitz, and Bridget S. Bade, Circuit Judges.

Opinion by Judge Callahan 2 RENO V. DAVIS

SUMMARY *

Habeas Corpus/Death Penalty

The panel affirmed the district court’s denial of Reno’s amended 28 U.S.C. § 2254 habeas corpus petition challenging his California conviction, on retrial, and death sentence for two first-degree murders and one second-degree murder.

The district court issued a certificate of appealability on two issues: Reno’s due process claims regarding the destruction of police records (Claims 17 and 18); and the state trial court’s failure to instruct the jury on Cal. Penal Code § 272, which Reno asserted was a lesser included offense of one of the felony charges (Claim 48).

Claims 17 and 18 asserted that the California Supreme Court unreasonably applied clearly established federal law and unreasonably determined the facts when it ruled that the State’s destruction of police personnel records before Reno’s second trial was not performed in bad faith and did not violate his constitutional rights. The panel held that the California Supreme Court reasonably applied Arizona v. Youngblood, 488 U.S. 51 (1988), instead of Brady v. Maryland, 373 U.S. 83 (1963), because the record does not support Reno’s assertion that the purged records contained material exculpatory evidence. The panel wrote that the California Supreme Court’s previous decision in People v. Memro, 38 Cal. 3d 658 (1985), did not conclusively resolve this question in his favor. The panel also held that the * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. RENO V. DAVIS 3 California Supreme Court did not act unreasonably when, applying Youngblood, it affirmed the trial court’s factual finding that there was no evidence that the police department acted in bad faith.

Claim 48 asserted that the trial court violated Reno’s Eighth Amendment rights by failing to sua sponte instruct the jury on lesser included offenses of the felony lewd acts with a minor charge (Cal. Penal Code § 288) which formed the basis of a capital first-degree felony murder count. Specifically, Reno contended that the jury should have been given the option of alternatively finding him guilty of misdemeanor child molestation under Penal Code § 647a, or misdemeanor contributing to the delinquency of a minor under Penal Code § 272. The panel held that the instructions in Reno’s case—which did not give the jury “an all-or- nothing choice” between the capital first-degree murder charge and innocence, but rather gave the jury the option of finding Reno guilty of the lesser included non-capital offenses of second-degree murder or voluntary manslaughter—did not run afoul of Beck v. Alabama, 447 U.S. 625 (1980), and there was no constitutional error. The panel wrote that Reno failed to identify anything in the California Supreme Court’s decision that is inconsistent with the result in Schad v. Arizona, 501 U.S. 524 (1991), abrogated on other grounds as recognized by Edwards v. Vannoy, 141 S. Ct. 1547, 1554 n.4 (2021), in which the