The Honorable Lynn S. Adelman, United States District Judge for the *

Eastern District of Wisconsin, sitting by designation.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DERRICK LOFTIS,

Petitioner-Appellant,

v.

VICTOR ALMAGER, Warden

Respondent-Appellee.

No. 09-16884

D.C. No.

1:07-cv-010603-

JAH-LSP

OPINION

Appeal from the United States District Court

for the Eastern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted

February 16, 2012—San Francisco, California

Filed December 11, 2012

Before: A. Wallace Tashima and Barry G. Silverman,

Circuit Judges, and Lynn S. Adelman, District Judge. *

Opinion by Judge Adelman;

Concurrence by Judge Silverman;

Dissent by Judge Tashima
2 LOFTIS V. ALMAGER

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Habeas Corpus

The panel affirmed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition challenging a no

contest plea to second degree murder that petitioner alleged

was not knowing and voluntary.

Judge Adelman wrote that, although Federal Rule of

Criminal Procedure 11 and its state analogs require that a plea

be supported by a factual basis, the state trial court’s failure

to find one for Loftis’s plea–unaccompanied by protestations

of innocence–did not present a constitutional issue cognizable

under § 2254. In this case, petitioner’s plea was not made

under Alford or a state analog that would trigger a factual

basis requirement.

Judge Silverman concurred only in the result. He agreed

with Judge Tashima that a factual basis is required for an

Alford plea or the no contest plea entered in this case pursuant

to People v. West, 477 P.2d 409 (Cal. 1970) (California’s

Alford analog). If a trial court fails to establish a factual

basis, Judge Silverman would look to a pre-sentence report

prepared by the probation department to see whether the error

was harmless. Here, the answer is yes because the report

contains facts to support the plea. Judge Silverman next

would determine whether the facts set forth in the probation

report establish a factual basis for the plea under California

law, and would conclude that they did in this case.
LOFTIS V. ALMAGER 3

Judge Tashima dissented because Loftis’s West plea was

tantamount to a claim of innocence, and the trial court thus

violated clearly established federal law when it failed to

identify any factual basis for the plea. Judge Tashima would

hold that this error had a substantial and injurious effect on

the proceedings because nothing in the record suggests that

Loftis acted with knowledge that he was endangering human

life.

COUNSEL

Daniel J. Broderick, Federal Defender, Carolyn M. Wiggin,

Assistant Federal Defender, Sacramento, California, for

Petitioner-Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell,

Senior Assistant Attorney General, Justain P. Riley, Deputy

Attorney General, Kathleen A. McKenna, Supervising

Deputy Attorney General, for the Respondent-Appellee.

OPINION

ADELMAN, District Judge:

Petitioner-Appellant Derrick Loftis seeks a writ of habeas

corpus challenging his California conviction of second degree

murder. The district court denied the petition, but we issued

a certificate of appealability regarding whether there was a

sufficient factual basis to support Loftis’s no contest plea and

whether his plea was knowing and voluntary. We now

affirm.
4 LOFTIS V. ALMAGER

I. FACTS AND BACKGROUND

The pertinent facts, as set forth in the state appellate

court’s opinion, are as follows:

On February 27, 2004, [Loftis] and Richard

Banuelos received a telephone call from

15-year-old Celena V. She informed them she

wanted to buy an eight-ball of crystal

methamphetamine. They went to pick her up

and she got into the vehicle. They drove to

the Holiday Lodge, where defendant kept his

bag of methamphetamine. [Loftis] and Celena

were in a room alone. Celena bought the

methamphetamine from defendant for $100,

then she smoked and snorted some of it.

[Loftis] also consumed some with her.

[Loftis] and Celena had been in the room for

about 45 minutes when Celena began to “get

‘crazy’ by freaking out, getting hot and

shaking.” Banuelos called and asked [Loftis]

if they were ready to go. Banuelos arrived

and the three of them left together. They went

to [Loftis’s] residence and Banuelos gave

Celena some milk.

Leslie Saiz arrived at the residence. [Loftis]

wanted to go to the Palace casino to look for

his girlfriend. Although Celena had not

improved, [Loftis] did not take her to the

hospital just down the street because “it never

crossed his mind.” Instead, the four of them

got in the vehicle and drove toward the

Palace. [Loftis] noticed Celena was not
LOFTIS V. ALMAGER 5

breathing. He shook her and told the others

he wanted to take her to the hospital, but Saiz

said [“N]o, ... she was [dead.”] They had

decided not to seek medical care because they

feared going to jail. They stopped on a gravel

road and Saiz and Banuelos took Celena out

of the car, laid her on the ground and covered

her with tumbleweeds. [Loftis] did not get

out because he was feeling too sick to move.

They drove on to the Palace to meet [Loftis’s]

girlfriend.

Once at the Palace, [Loftis] played slot

machines and met up with his girlfriend.

They went home and [Loftis] was sick the

whole day and night. [Loftis] thought the

methamphetamine must have been bad since

he also got sick.

The following night, Celena’s parents filed a

missing person report. About a month later,

Celena’s body was found and a few days after

that [Loftis] was interviewed. He first denied

any involvement in Celena’s death, then

stated she had overdosed. He then gave the

preceding account.

People v. Loftis, No. F050676, 2007 WL 1248492, at *1 (Cal.

Ct. App. May 1, 2007).

Initially charged with murder in the death of Celina V.,

along with four other counts, Loftis later agreed to plead no

contest to second degree murder in exchange for dismissal of

the other charges. The state trial court conducted a thorough
6 LOFTIS V. ALMAGER

plea colloquy, ensuring that Loftis understood the nature of

the charges, the penalties he faced and the rights he was

relinquishing. The following exchange then occurred:

 “THE COURT: Factual basis.

“[DEFENSE COUNSEL]: Your Honor,

pursuant to People versus West [(1970) 3 Cal.

3d 595, defendant] is entering this plea to

avoid the possibility of being convicted of

first degree murder.

“THE COURT: Is that correct, [Prosecutor]?

“[PROSECUTOR]: That is correct, it’s People

versus West.

“THE COURT: Okay. The Court will accept,

will be willing to accept it pursuant to People

versus West.

Id. at *3. The trial court then verified that Loftis understood

his no contest plea and accepted it. At no point did Loftis

proclaim his innocence or otherwise protest. The trial court

later sentenced Loftis to 15 years to life in prison.

Loftis appealed, arguing that the trial court failed to

establish a factual basis for his no contest plea. Specifically,

he argued that the record failed to present such a basis

because there was no evidence that he intended to kill Celena

and no evidence that he engaged in an inherently dangerous

felony when he sold the methamphetamine to Celena. The

state appellate court agreed that a factual basis was necessary

as a matter of California law but found that any error was
LOFTIS V. ALMAGER 7

harmless because the record contained facts supporting a

finding that Loftis knew that his failure to seek medical care

for Celena placed herlife in danger and, therefore, constituted

“implied malice murder” under California law. The

California Supreme Court denied Loftis’s petition for review.

II. DISCUSSION

It is axiomatic that habeas relief lies only for violations of

the Constitution, laws, or treaties of the United States; errors

of state law will not suffice. E.g., Estelle v. McGuire,

502 U.S. 62, 67–68 (1991). Consequently, we must

determine whether Loftis’s factual basis claim raises a federal

constitutional issue.

The Constitution requires that a plea be knowing,

intelligent, and voluntary. E.g., Boykin v. Alabama, 395 U.S.

238, 244 (1969). The record must show that the defendant

voluntarily relinquished his privilege against selfincrimination, his right to trial by jury and his right to

confront his accusers, e.g., United States v. Escamilla-Rojas,

640 F.3d 1055, 1062 (9th Cir. 2011), cert. denied,

81 U.S.L.W. 3161 (U.S. Oct. 1, 2012), and that he understood

the nature of the charges and the consequences of his plea,

e.g., Tanner v. McDaniel, 493 F.3d 1135, 1146–47 (9th Cir.

2007); Little v. Crawford, 449 F.3d 1075, 1080 (9th Cir.

2006). 

Beyond these essentials, the Constitution “does not

impose strict requirements on the mechanics of plea

proceedings.” Escamilla-Rojas, 640 F.3d at 1062 (citing

Brady v. United States, 397 U.S. 742, 747 n.4 (1970)). While

Fed. R. Crim. P. 11 and its state analogs require additional

safeguards, violations of such rules do not ordinarily render
8 LOFTIS V. ALMAGER

a plea constitutionally infirm and thus vulnerable to collateral

attack. See, e.g., United States v. Timmreck, 441 U.S. 780,

783–84 (1979); see also Estelle, 502 U.S. at 68 n.2. 

Among the requirements imposed on trial judges by rule

– but not the Constitution – is the finding of a factual basis.

See, e.g., Higgason v. Clark, 984 F.2d 203, 208 (7th Cir.

1993) (“Putting a factual basis for the plea on the record has

become familiar as a result of statutes and rules, not as a

result of constitutional compulsion.”). Accordingly, habeas

courts have held that, unless a plea is accompanied by

protestations of innocence or other “special circumstances,”

the Constitution does not require state judges to find a factual

basis. E.g., Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir.

1985); see also Meyers v. Gillis, 93 F.3d 1147, 1151 (3d Cir.

1996) (“Putsimply, the Due Process Clause of the Fourteenth

Amendment to the United States Constitution does not

require an on-the-record development of the factual basis

supporting a guilty plea before entry of the plea, and the

failure of a state court to elicit a factual basis before accepting

a guilty plea does not in itself provide a ground for habeas

corpus relief under 28 U.S.C. § 2254.”). Cf. Willett v. State

of Ga., 608 F.2d 538, 540 (5th Cir. 1979) (holding that under

North Carolina v. Alford, 400 U.S. 25 (1970), “when a

defendant pleads guilty while claiming his or her innocence,

the court commits constitutional error in accepting the plea

unless the plea is shown to have a factual basis”).

Loftis cannot obtain habeas relief because the state trial

court’s failure to find a factual basis for his no contest plea –

unaccompanied by protestations of innocence – does not

present a constitutional issue cognizable under 28 U.S.C.

§ 2254. See, e.g., Bonior v. Conerly, 416 Fed. App’x 475,

476 (6th Cir. 2010) (holding that a prisoner’s claim that there
LOFTIS V. ALMAGER 9

was an insufficient factual basis to support his no contest plea

to lesser charges was not cognizable in federal habeas

corpus); Green v. Koerner, 312 Fed. App’x 105, 108 (10th

Cir. 2009) (holding that a prisoner’s claim that the state court

lacked a factual basis to support a no contest plea did not, by

itself, present a basis to invalidate her plea in a federal habeas

corpus action); Foote v. Ward, 207 Fed. App’x 927, 930 (10th

Cir. 2006) (holding that only if the defendant claims

innocence does he obtain the added protection of Alford);

Kirk v. Cline, No. 09-3187-WEB, 2011 WL 5597362, at *8

(D. Kan. Nov. 17, 2011) (collecting cases and noting that the

“due process clause does not require more of a factual basis

or other more stringent standards for a no contest plea than a

guilty plea”); see also Post v. Bradshaw, 621 F.3d 406,

426–27 (6th Cir. 2010) (noting that failure to find a factual

basis for a no contest plea would be a violation only of state

law, not cognizable in habeas), cert. denied, 131 S. Ct. 2902

(2011). It is therefore unnecessary to decide whether the state

appellate court unreasonably determined that the record

supplied an adequate factual basis for Loftis’s plea.

Our cases have not endorsed the proposition that a factual

basis is required for a no contest plea even when considering

claims raised under Rule 11 on direct appeal. See United

States v. Mancinas-Flores, 588 F.3d 677, 681 (9th Cir. 2009)

(“The factual basis requirement does not apply to nolo pleas.

See Fed. R. Crim. P. 11(b)(3). This is so because a defendant

pleading nolo contendere takes no position on whether he

committed the elements of the offense, and the court

therefore has no reason to examine whether, in fact, he did.”);

see also Alford, 400 U.S. at 36 n.8 (noting that while a court

may not under Rule 11 accept a guilty plea absent a factual

basis, “there is no similar requirement for pleas of nolo

contendere, since it was thought desirable to permit
10 LOFTIS V. ALMAGER

defendants to plead nolo without making any inquiry into

their actual guilt”). No one suggests that Rule 11(b)(3),

which requires a factual basis for guilty pleas – but not no

contest pleas – is unconstitutional.

Judges Tashima and Silverman contend that Loftis’s

citation to People v. West, 477 P.2d 409 (1970) in connection

with his no contest plea was sufficient to trigger Alford’s

factual basis requirement. It is true that we have previously

said in dicta that West “is the California equivalent of an

Alford plea.” Doe v. Woodford, 508 F.3d 563, 566 (9th Cir.

2007); see also Roe v. Flores-Ortega, 528 U.S. 470, 473

(2000) (“The plea was entered pursuant to a California rule

permitting a defendant both to deny committing a crime and

to admit that there is sufficient evidence to convict him. See

People v. West, 3 Cal. 3d 595, 477 P.2d 409 (1970).”).

However, the defendant in Doe pleaded guilty, 508 F.3d at

565, rather than no contest, and his primary complaint was

that his plea was involuntary because he lacked sufficient

time to decide, id. at 569–72. We did not discuss the

sufficiency of the factual basis or any protestations of

innocence.

In the present case, Loftis entered a plea of no contest not

a traditional Alford plea (i.e, a plea of guilty by one who

continues to claim innocence). See Mancinas-Flores,

588 F.3d at 681 (“An Alford plea differs from a nolo plea in

that a defendant pleading nolo contendere takes no position

on guilt or innocence, whereas a defendant entering an Alford

plea takes the position that he is not guilty.”); Stephanos

Bibas, Harmonizing Substantive-Criminal-Law Values and

Criminal Procedure: the Case of Alford and Nolo Contendere

Pleas, 88 Cornell L. Rev. 1361, 1373 (2003) (“[D]efendants

who plead nolo contendere simply refuse to admit guilt, while
LOFTIS V. ALMAGER 11

defendants making Alford pleas affirmatively protest their

innocence.”). As Judge Tashima acknowledges, Alford

permits the court to accept a defendant’s nolo contendere plea

and treat him as if he were guilty, without inquiry into his

actual guilt. See 400 U.S. at 36 & n.8.

Analysis of Alford, West and California and Ninth Circuit

cases makes clear that the citation to West during Loftis’s

plea colloquy did not transform Loftis’s no contest plea into

an Alford plea. The issue before the Supreme Court in Alford

was whether a guilty plea from a person who claimed

innocence should be accepted. The Court noted its previous

decisions holding that trial courts “may impose a prison

sentence after accepting a plea of nolo contendere, a plea by

which a defendant does not expressly admit his guilt, but

nonetheless waives his right to a trial and authorizes the court

for purposes of the case to treat him as if he were guilty.”

400 U.S. at 35. The Court stated that:

These cases would be directly in point if

Alford had simply insisted on his plea but

refused to admit the crime. The fact that his

plea was denominated a plea of guilty rather

than a plea of nolo contendere is of no

constitutional significance with respect to the

issue now before us, for the Constitution is

concerned with the practical consequences,

not the formal categorizations, of state law.

Thus, while most pleas of guilty consist of

both a waiver of trial and an express

admission of guilt, the latter element is not a

constitutional requisite to the imposition of

criminal penalty. An individual accused of

crime may voluntarily, knowingly, and
12 LOFTIS V. ALMAGER

understandingly consent to the imposition of

a prison sentence even if he is unwilling or

unable to admit his participation in the acts

constituting the crime.

Nor can we perceive any material difference

between a plea that refuses to admit

commission of the criminal act and a plea

containing a protestation of innocence when,

as in the instant case, a defendant intelligently

concludes that his interests require entry of a

guilty plea and the record before the judge

contains strong evidence of actual guilt. Here

the State had a strong case of first-degree

murder against Alford. Whether he realized

or disbelieved his guilt, he insisted on his plea

because in his view he had absolutely nothing

to gain by a trial and much to gain by

pleading. Because of the overwhelming

evidence against him, a trial was precisely

what neither Alford nor his attorney desired.

Confronted with the choice between a trial for

first-degree murder, on the one hand, and a

plea of guilty to second-degree murder, on the

other, Alford quite reasonably chose the latter

and thereby limited the maximum penalty to

a 30-year term. When his plea is viewed in

light of the evidence against him, which

substantially negated his claim of innocence

and which further provided a means by which

the judge could test whether the plea was

being intelligently entered, its validity cannot

be seriously questioned. In view of the strong

factual basis for the plea demonstrated by the
LOFTIS V. ALMAGER 13

State and Alford’s clearly expressed desire to

enter it despite his professed belief in his

innocence, we hold that the trial judge did not

commit constitutional error in accepting it.

Id. at 37–38 (internal citations and footnote omitted).

While Alford did not explicitly hold that a factual basis

was constitutionally necessary, lower federal courts have

drawn from the above language the requirement that if a

defendant pleads guilty while claiming innocence the trial

court must find a factual basis. See, e.g., Willet, 608 F.2d at

540. But cf. Higgason, 984 F.2d at 207 (“Alford tells us that

strong evidence on the record can show that a plea is

voluntary; it does not hold that only strong evidence on the

record permits a finding of voluntariness. And it certainly

does not imply that the factual-basis requirement of Fed. R.

Crim. P. 11(f) and its state-law counterparts comes from the

Constitution.”). This requirement is based on the concern

that a defendant who pleads guilty while simultaneously

claiming innocence may not be acting freely and voluntarily.

See Willet, 608 F.2d at 540 (noting the “‘importance of

protecting the innocent and of insuring that guilty pleas are a

product of free and intelligent choice’”) (quoting Alford,

400 U.S. at 38 n.10). By finding a factual basis, the trial

judge resolves the conflict between the waiver of trial and the

claim of innocence. See id. When a defendant pleads guilty

or no contest without claiming innocence or otherwise

making statements calling into question the voluntariness of

his plea, however, there is no such conflict for the trial judge

to resolve, and the finding of a factual basis is not essential to

voluntariness. In the present case, Loftis made no statements

triggering the concerns raised in Alford.
14 LOFTIS V. ALMAGER

 Judge Tashima notes that Rauen also said a West plea “allows a 1

defendant to plead guilty in order to take advantage of a plea bargain

while still asserting his or her innocence.” Id. at 734. That a West plea

allows a defendant to plead guilty while asserting innocence does not

change the fact that Loftis pleaded no contest without ever making such

an assertion. Further, as Alford noted, the Constitution is concerned with

the practical consequences of the defendant’s plea, not the manner in

which it may be formally categorized under state law. 400 U.S. at 37. In

other words, we should focus on whether Loftis’s plea raised the concerns

identified in Alford not the label California courts might place upon it.

Nor can a bare reference to People v. West, such as

occurred during the plea colloquy here, carry with it an

implied assertion of innocence, activating the additional

protections of Alford. “West did not actually involve a claim

of innocence but addressed the validity of a plea to an

uncharged lesser offense entered pursuant to a plea bargain.”

People v. Rauen, 133 Cal. Rptr. 3d 732, 734 n.1 (Cal. App.

2011); see also In re Alvernaz, 830 P.2d 747, 752 (Cal. 1

1992) (characterizing a West plea as “a plea of nolo

contendere, not admitting a factual basis for the plea”). West

approved the practice of plea bargaining to a lesser charge in

order to avoid exposure to greater penalties. In this sense,

West resembles Alford because the motive in Alford was also

to avoid more serious penalties. But West’s focus was on

validating the practice of plea bargaining generally. The

decision relied in part on Brady v. United States, 397 U.S.

742 (1970), in which the Supreme Court approved a plea to

a lesser charge motivated by the desire to avoid a higher

penalty, but West never even mentioned Alford, which had

come down a few weeks previous. Thus, West is more an

analog of Brady than of Alford.

While some California cases casually refer to West and

Alford pleas interchangeably, others draw a distinction. See,
LOFTIS V. ALMAGER 15

e.g., In re Mills, No. C066648, 2011 WL 4005394, at *4 (Cal.

App. 3 Dist. Sept. 9, 2011) (“The superior court correctly

found Mills entered his plea on the mistaken belief that a

West plea allowed him to maintain his innocence; West did

not involve a claim of innocence but instead addressed the

validity of a plea to an uncharged lesser offense entered

pursuant to a plea bargain.”); People v. Wampler, No.

C060649, 2010 WL 1435040, at *2 n.2 (Cal. App. 3 Dist.

Apr. 12, 2010) (noting that while pleas in which the

defendant continues to maintain innocence are sometimes

referred to as West pleas, they are really Alford pleas). Judge

Tashima correctly notes that these decisions are nonprecedential. They do, however, indicate that California law

does not clearly equate West and Alford such that as a federal

habeas court we should extend the additional protections of

Alford to any case in which West is mentioned during the plea

colloquy. In any event, as discussed in note 1 above, the

validity of a plea under the Constitution does not turn on how

it is formally categorized under state law. Alford, 400 U.S. at

37. Thus, it is also irrelevant that under California law nolo

pleas are treated like guilty pleas. See Cal. Penal Code

§ 1016(3).

Judge Tashima argues that even if a West plea is not

equivalent to a claim of innocence, it at least qualifies as a

“special circumstance.” Rodriguez, 777 F.2d at 528.

However, the only special circumstance we identified in

Rodriguez was “a defendant’s specific protestation of

innocence, which might impose on a state court the

constitutional duty to make inquiry and to determine if there

is a factual basis for the plea.” Id. Similarly, Banks v.

McGougan, 717 F.2d 186, 188 (5th Cir.1983), the case upon

which Rodriguez primarily relied, spoke of a situation in

which “the state judge is put on notice that there may be some
16 LOFTIS V. ALMAGER

need for such an inquiry (as, for example, when the accused

asserts his innocence).” We have found no case in which a

federal habeas court has extended the factual basis rule of

Alford to a situation such as in the present case where the

defendant pleaded no contest without asserting innocence or

making other statements about the facts which called the

validity of his plea into question.

Finally, Judge Tashima contends that United States v.

Vidal, 504 F.3d 1072 (9th Cir. 2007), supports the proposition

that a defendant who pleads pursuant to People v. West

contests factual guilt. In Vidal, we considered on direct

appeal whether a defendant’s California conviction for

driving a stolen vehicle qualified as an aggravated felony,

supporting an 8-level sentencing guideline enhancement

under U.S.S.G. § 2L1.2(b)(1)(C). The defendant pled guilty

in exchange for the dismissal of another count, and the

description of the facts supporting the charge in his plea form

stated only “People v. West.” Id. at 1075. We held first that

because the California statute at issue also applied to

accessories after the fact it did not categorically describe a

“generic” theft offense. Id. at 1077–86. We then concluded

that under the modified categorical approach the record did

not permit a finding that the defendant pled guilty to generic

theft, as the plea form contained no factual basis permitting

such a finding. Id. at 1088–89. In so holding, we discussed

West pleas and noted that the “California Supreme Court

subsequently characterized a People v. West plea as a plea of

nolo contendere that does not establish factual guilt.” Id. at

1089. Thus, we said that “unless the record of the plea

proceeding reflects that the defendant admitted to facts, a

West plea, without more, does not establish the requisite

factual predicate to support a sentence enhancement.” Id. 
LOFTIS V. ALMAGER 17

 United States v. Savage, 542 F.3d 959 (2d Cir. 2008), which Judge 2

Tashima also cites, is similarly distinguishable. In Savage, the court

declined to impose a sentence enhancement under the modified categorical

approach because the defendant’s Alford plea did not establish the

requisite facts.

We did not hold in Vidal that West pleas are the same as

Alford pleas or that a factual basis is constitutionally required

for a valid West plea. We held only that without a factual

basis permitting a determination of whether the prior

conviction qualified as an aggravated felony, the sentencing

guideline enhancement could not be applied. Thus, Vidal

therefore cannot bear the weight Judge Tashima places upon

it.2

III. CONCLUSION

Because Loftis did not enter an Alford plea, the state court

was under no obligation, under the federal Constitution, to

find a factual basis. Loftis provides no other reason to find

his plea unknowing or involuntary. Accordingly, he is not

entitled to habeas relief. 

AFFIRMED.

SILVERMAN, Circuit Judge, concurring in the result:

Chief Judge Kozinski recently designated a separate

opinion of his, not as a dissent or a partial concurrence, but as

a “disagree[ment] with everyone.” Garfias-Rodriguez v.

Holder, — F.3d —, 2012 WL 5077137 (9th Cir. October 19,

2012). I chuckled at the time, but not any more. I now find

myself in the position of agreeing with the result reached by

Judge Adelman affirming the denial of a writ of habeas
18 LOFTIS V. ALMAGER

corpus, but only with the result; agreeing with the portion of

Judge Tashima’s dissent demonstrating the constitutional

requirement of a factual basis to support a People v. Westtype no contest plea; but ultimately disagreeing with Judge

Tashima about whether there was, indeed, a factual basis in

this case for second degree murder under California law.

I start with Judge Tashima. I agree with him that a factual

basis is required for an Alford plea or a no contest plea

entered pursuant to People v. West, 477 P.2d 409 (Cal. 1970),

California’s analogue to Alford. As Judge Tashima cogently

shows, a court taking a no contest or Alford-type plea must

satisfy itself that there is a factual basis to believe that the

defendant is, indeed, guilty of the crime for which he will be

convicted. A factual basis is constitutionally required

because of the importance of protecting the innocent and

assuring that the plea is the product of free and intelligent

choice. North Carolina v. Alford, 400 U.S. 25, 38 (1970).

Here, the trial court failed to establish a factual basis at

the time it accepted Loftis’s no contest plea. That error gives

rise to the next question: Whether a reviewing court may look

to a pre-sentence report prepared by the probation department

to see whether the error was harmless – that is, to ascertain

whether the report contains facts that support the plea. The

answer to that question is yes, and Loftis does not argue

otherwise. See United States v. Mancinas-Flores, 588 F.3d

677, 681–83 (9th Cir. 2009); Carty v. Nelson, 426 F.3d 1064,

1074–75 (9th Cir. 2005). In any event, there are no clearly

established United States Supreme Court decisions to the

contrary.

The final question is whether the facts set forth in the

probation report establish a factual basis for second degree
LOFTIS V. ALMAGER 19

 The Court of Appeal wrote: 1

California law recognizes three theories of second

degree murder, one of which is implied malice murder.

(People v. Robertson (2004) 34 Cal. 4th 156, 164

[malice is implied when the killing results from an

intentional act, the natural consequences of which are

dangerous to life, which act was deliberately performed

by a person who knows that his conduct endangers the

life of another and who acts with conscious disregard

for life].)

Here, the probation report contained facts

supporting a finding that defendant knew the

consequences of his failure to seek medical care for

Celena placed her life in danger. He observed her

adverse reaction and her continuing condition. He

suggested taking her to the hospital and therefore

recognized the seriousness of her situation. The facts

also show defendant acted with conscious disregard for

Celena’s life. He knew she was ill and did nothing to

help her. The hospital was only a short distance from

his house. He and his cohorts simply took Celena along

murder under California law. The answer to this question

begins and ends with the principle that the California courts

are the expositors of California law. The California courts

tell us what California law covers; we don’t tell them.

Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have

repeatedly held that a state court’s interpretation of state law,

including one announced on direct appeal of the challenged

conviction, binds a federal court sitting in habeas corpus.”).

In this case, the California Court of Appeal reviewed the facts

set forth in the probation report and, analyzing California

cases and interpreting California law, concluded that those

facts would support a conviction of second-degree murder

under the California Penal Code.1
20 LOFTIS V. ALMAGER

in the vehicle when they headed to the Palace casino.

When she quit breathing, defendant mentioned the

hospital to his cohorts but he made no real effort to get

her there. On the way to the casino, they stopped the

vehicle, placed Celena’s body on the roadside and

covered it with tumbleweeds. When they arrived at the

casino, defendant played slot machines. In sum, while

Celena was experiencing a violent reaction to the

methamphetamine and was obviously ailing, even when

she quit breathing, defendant consciously disregarded

her life-threatening condition and deprived her of

medical care, knowing he was placing her life in

danger.

“[T]he common law does not distinguish between

homicide by act and homicide by omission.” (People

v. Burden (1977) 72 Cal. App. 3d 603, 618; see also

People v. Dellinger (1989) 49 Cal. 3d 1212, 1220.)

Passive conduct or omissions may satisfy the actus reas

component of murder where the person is under a duty

to act. (See People v. Protopappas (1988) 201 Cal.

App. 3d 152, 168 [doctor’s failure to assist his patient

after inappropriately administering anesthesia]; People

v. Burden, supra, at pp. 620–621 [father’s failure to

feed his child].) Defendant owed Celena a duty to act.

He created the substantial risk by selling her the

methamphetamine. He observed her serious reaction to

the drug and knew she was still sick when she entered

the vehicle. Once she was in the vehicle with defendant

and the others, she had no other access to help. At that

point, she was entirely dependent on defendant and the

others for assistance. We believe these circumstances,

which placed Celena in grave peril, resulted in a duty

on defendant’s part to act. (See, e.g., Health & Saf.

Code § 11704, subd. (1) [drug dealer liability; person

who knowingly participates in marketing of illegal

controlled substances is liable for civil damages; person

may recover damages for injury resulting from an

individual’s use of illegal controlled substance];
LOFTIS V. ALMAGER 21

Williams v. State of California (1983) 34 Cal. 3d 18, 23

[no affirmative duty to act absent special relationship

unless actor has created a situation of peril increasing

risk of harm]; McGettigan v. Bay Area Rapid Transit

Dist. (1997) 57 Cal. App. 4th 1011, 1021–1022 [same];

Rest.2d Torts §314A, comment d. [duty to protect

person against unreasonable risk of harm extends to

risks arising out of the actor’s own conduct].)

People v. Loftis, 2007 WL 1248492 at *5–6 (footnote citing to

CALCRIM No. 520 and CALJIC No. 8.31 omitted).

That is the end of the matter. Alford requires that the

record contain a factual basis for the plea, not proof beyond

a reasonable doubt. United States v. Neel, 547 F.2d 95, 96

(9th Cir. 1976) (per curiam).

Forthese reasons, I concur in affirming the district court’s

denial of habeas relief.

TASHIMA, Circuit Judge, dissenting:

I respectfully dissent. Derrick Loftis committed a

despicable act when he sold drugs to a young girl. But that

act, plus the fact that the girl later died in his presence, is

insufficient to support a murder conviction. Given the nature

of Loftis’ plea, the stark disconnect between the facts and the

plea raises a substantial constitutional issue. Loftis’ West

plea was tantamount to a claim of innocence, and the trial

court thus violated clearly established federal law when it

failed to identify any factual basis for the plea. This error had

a substantial and injurious effect on the proceedings because

nothing in the record suggests that Loftis acted with
22 LOFTIS V. ALMAGER

 This report, of course, was not before the court at the plea-taking. But 1

consistent with the state appellate court’s reliance on it and the majority’s

reliance on it, by reference, see Maj. op. at 4–5, I refer to it as the most

complete recounting of the facts in this case.

 People v. West, 477 P.2d 409 (Cal. 1970). 2

knowledge that he was endangering human life. I would,

thus, grant Loftis’ habeas petition.

I

According to the state court probation report, Loftis 1

admitted to police that he sold crystal meth to fifteen-year-old

Celena V., and that after she consumed the crystal meth she

“began to get ‘crazy’ by freaking out, getting hot and

shaking.” Richard Banuelos gave Celena some milk. Celena

did not improve, but Loftis, Banuelos, Leslie Saiz, and

Celena headed to a casino. On the way there, Loftis noticed

that Celena was not breathing, attempted to wake her up by

shaking her, and told the others that he wanted to take her to

a hospital, to which Saiz responded that she was already

dead. Saiz and Banuelos then took her body out of the car

and covered it with tumbleweeds. Loftis, Banuelos, and Saiz

continued on to the casino. Celena’s body was discovered

about a month later.

Loftis was charged with murder, and eventually entered

a plea of no contest to second-degree murder. There was no

written plea agreement, Loftis did not complete a written plea

form, and the parties never stipulated to a factual basis for the

plea. When the court asked the parties to supply a factual

basis for the plea at the plea colloquy, Loftis’ attorney stated

that Loftis was pleading “pursuant to People versus West.”2
LOFTIS V. ALMAGER 23

 Similarly, Loftis’ plea was based on “avoid[ing] the possibility of 3

being convicted of first degree murder.” Maj. op. at 6.

Loftis’ conviction was affirmed on appeal, and the district

court denied his federal habeas petition.

II

A

When a defendant pleads guilty, he waives “[s]everal

federal constitutional rights,” including “the privilege against

compulsory self-incrimination[,] . . . the right to trial by jury[,

and] . . . the right to confront one’s accusers.” Boykin v.

Alabama, 395 U.S. 238, 243 (1969). A waiver of these rights

must be voluntary and intelligent. Id. at 242–43; see also

Brady v. United States, 397 U.S. 742, 748 (1970). “Central

to the plea and the foundation for entering judgment against

the defendant is the defendant’s admission in open court that

he committed the acts charged in the indictment.” Id.

In North Carolina v. Alford, 400 U.S. 25 (1970), the

Supreme Court held that a guilty plea accompanied by

protestations of innocence may be accepted only if the judge

“test[s] whether the plea was being intelligently entered” by

ensuring that there is a factual basis for the pled charge. Id.

at 38. Alford had been indicted for first-degree murder and

pled guilty to second-degree murder. Id. at 26–27. At the

plea hearing, he testified that he did not commit the murder

but was pleading guilty to avoid the threat of the death

penalty. Id. at 28. Before the court accepted the guilty plea, 3

a police officer summarized the state’s case, and two other

witnesses testified that “shortly before the killing Alford took

his gun from his house, stated his intention to kill the victim,
24 LOFTIS V. ALMAGER

and returned home with the declaration that he had carried out

the killing.” Id. On appeal, Alford argued that his plea was

invalid because it was the product of fear and coercion. Id. at

29.

The Court explained that Alford’s protestation of

innocence presented a potential problem, because

“[o]rdinarily, a judgment of conviction resting on a plea of

guilty is justified by the defendant’s admission that he

committed the crime charged against him and his consent that

judgment be entered.” Id. at 32. When Alford asserted that

he was innocent, he created “a factual and legal dispute

between him and the State” as to his guilt. Id. This was

problematic because the admission of guilt is “normally

‘central to the plea and the foundation for entering

judgment.’” Id. (quoting Brady, 397 U.S. at 738) (internal

alterations omitted). “Without more, it might be argued that

the conviction . . . was invalid, since his assertion of

innocence negatived any admission of guilt . . . .” Id.

(emphasis added).

The “more” that made Alford’s guilty plea valid was that

when the plea was “viewed in light of the evidence against

him, which substantially negated his claim of innocence and

which further provided a means by which the judge could test

whether the plea was being intelligently entered, its validity

cannot be seriously questioned.” 400 U.S. at 37-38 (citing

McCarthy v. United States, 394 U.S. 459, 466-67 (1969)).

The cited portion of McCarthy explains that Federal Rule of

Criminal Procedure 11, which requires the court to determine

that there is a factual basis for a guilty plea before entering

judgment, “is designed to protect a defendant who is in the

position of pleading voluntarily with an understanding of the

nature of the charge but without realizing that his conduct
LOFTIS V. ALMAGER 25

does not actually fall within the charge.” McCarthy, 394 U.S.

at 467 (internal quotation marks omitted). Therefore, when

a defendant pleads guilty, but protests his innocence, the trial

court ensures that the plea is intelligent by determining that

there is a factual basis for the plea. Alford, 400 U.S. at 38;

see also United States v. King, 257 F.3d 1013, 1022 (9th Cir.

2001); United States v. Neel, 547 F.2d 95, 96 (9th Cir. 1976).

B

Loftis pled no contest under California law and cited

People v. West. This plea was sufficient to trigger the factual

basis requirement under Alford.

1

The United States Supreme Court, the Ninth Circuit, and

the California Supreme Court all interpret a plea pursuant to

People v. West to mean that the defendant does not admit

factual guilt but pleads to avoid a more serious punishment.

See Roe v. Flores-Ortega, 528 U.S. 470, 473 (2000) (noting

in dicta that a People v. West plea “permit[s] a defendant both

to deny committing a crime and to admit that there is

sufficient evidence to convict him”); Doe v. Woodford,

508 F.3d 563, 566 n.2 (9th Cir 2007) (noting that a People v.

West plea “does not require an admission of guilt and is the

California equivalent of an Alford plea”); In re Alvernaz, 830

P.2d 747, 752 (Cal. 1992) (describing a People v. West plea

as a “plea of nolo contendere, not admitting a factual basis for

the plea”).

Our holding in United States v. Vidal, 504 F.3d 1072 (9th

Cir. 2007) (en banc), is dependent on the premise that a

defendant does not admit factual guilt when he pleads guilty
26 LOFTIS V. ALMAGER

Similarly, although the two unpublished decisions cited in Judge 4

Adelman’s opinion mention that West pleas are not identical to Alford

pleas because they do not involve claims of innocence, neither decision

pursuant to People v. West. In that case, the defendant pled

guilty to a crime, and was subject to a sentencing

enhancement for a prior offense. Id. at 1074–75. For that

prior offense, the defendant had pled guilty pursuant to

People v. West and no recitation of the factual basis for

defendant’s plea appeared on the written plea and waiver of

rights form. Id. at 1075. Instead, as in this case, “only

‘People v. West’ [wa]s entered in the section that requests a

description of facts supporting any charges.” Id. The en banc

court held that the record for the prior offense “fails to

establish the factual predicate for [the defendant]’s plea of

guilty pursuant to People v. West.” Id. at 1087. This is

because “unless the record of the plea proceeding reflects that

the defendant admitted to facts, a West plea, without more,

does not establish the requisite factual predicate to support a

sentence enhancement.” Id. at 1089.

These precedents establish that, when a defendant pleads

guilty in California state court pursuant to People v. West, the

trial court must ensure that the defendant’s plea is intelligent

by ensuring that there is a factual basis for the plea.

Moreover, the California precedent cited by Judge Adelman

is not to the contrary. For example, People v. Rauen correctly

noted that “West did not actually involve a claim of

innocence,” 133 Cal. Rptr. 3d 732, 734 n.1 (Ct. App. 2011).

But more importantly, that court also stated that a West plea,

“also referred to as an Alford plea, based on North Carolina

v. Alford, allows a defendant to plead guilty in order to take

advantage of a plea bargain while still asserting his or her

innocence.” Id. at 734 (citation omitted).4
LOFTIS V. ALMAGER 27

holds that a West plea does not trigger Alford’s factual inquiry

requirement. See In re Mills, 2011 WL 4005394, at *4 (Cal. Ct. App.

2011); People v. Wampler, 2010 WL 1435040, at *2 n.2 (Cal. Ct. App.

2010). Moreover, these decisions cannot inform our analysis of California

law because unpublished decisions of the California intermediate appellate

courts are not precedential – they cannot be relied on as authoritative

pronouncements of California law. See Cal. Rule of Court 8.1115 (“an

opinion of a California Court of Appeal . . . that is not certified for

publication . . . must not be cited or relied on by a court or party in any

other action”).

 United States v. Mancinas-Flores, 588 F.3d 677 (9th Cir. 2009), cited 5

by Judge Adelman, is of little relevance. Mancinas-Flores was a direct

criminal appeal in which the defendant argued a violation of Fed. R. Crim.

P. 11; it was not a habeas case brought by a state prisoner raising

constitutional issues. Further, Mancinas-Flores’ citation to the Advisory

Committee’s 1966 note is out of date. Alford was not decided until four

years later, in 1970. Thus, the Advisory Committee’s 1974 note, citing

Alford, recognizes that “[a] plea of nolo contendere is, for purposes of

punishment, the same as the plea of guilty.” Fed. R. Crim. P. 11, advisory

committee note (1974).

Judge Adelman also stresses that the defendant in West

did not explicitly proclaim innocence, and thus concludes that

a West plea is distinguishable from an Alford plea. Nothing

in Alford, however, requires an express protestation of

innocence. Indeed, the Ninth Circuit has not limited the

Alford rule to pleas accompanied by claims of innocence, but

instead has held that “the due process clause does not impose

on a state court the duty to establish a factual basis for a

guilty plea absent special circumstances.” Rodriguez v.

Ricketts, 777 F.2d 527, 528 (9th Cir. 1985) (per curiam).5

Given the uniformity of published authority equating West

and Alford pleas, it is clear that, even if a West plea were not
28 LOFTIS V. ALMAGER

 The Second and Fifth Circuits have also recognized that a claim of 6

innocence is not a pre-requisite to the application of Alford. Thus, the

Second Circuit has noted that “[t]he distinguishing feature of an Alford

plea is that the defendant does not confirm the factual basis of the plea.”

United States v. Savage, 542 F.3d 959, 962 (2d Cir. 2008). And in Banks

v. McGougan, 717 F.2d 186, 188 (5th Cir. 1983), the Fifth Circuit agreed

with the holdings from five other circuits that “absent statements

inconsistent with guilt, state courts are not constitutionally required to

establish a factual basis for the plea of guilt.” The Banks court then held

that inquiry is required where the state judge “is put on notice that there

may be some need for such an inquiry.” Id. None of these formulations

of the Alford rule requires an express claim of innocence.

equivalent to a claim of innocence, it at least qualifies as such

a “special circumstance.”6

2

The fact that Loftis pled no contest rather than guilty does

not alter the outcome. As explained above, Alford requires

the trial judge to ensure that there is a factual basis for a

guilty plea when a defendant protests his innocence because

the protest undermines the “express admission of guilt” that

is “normally central to the plea and the foundation for

entering judgment.” 400 U.S. at 32, 37. By contrast, the

Court explained that if Alford had entered a nolo contendere

plea, which “has been viewed not as an express admission of

guilt but as a consent by the defendant that he may be

punished as if he were guilty,” the Court could simply treat

him as if he were guilty. Id. at 36 & n.8, 37; see also id. at 37

(equating “a plea that refuses to admit commission of the

criminal act” with a guilty plea accompanied by both a

protestation of innocence and “strong evidence of factual

guilt”). Therefore, when a defendant enters a plea that

ordinarily includes an admission of guilt and simultaneously
LOFTIS V. ALMAGER 29

protests his innocence, the trial court may accept the plea

only if it determines that there is a factual basis for the

charge.

Loftis’ no contest plea under People v. West was unlike

the classic nolo contendere plea discussed in Alford because

in California a nolo contendere plea “admits every element of

the crime charged and is the legal equivalent of a verdict and

is tantamount to a finding.” People v. Wallace, 93 P.3d 1037,

1043 (Cal. 2004) (internal quotation marks and citations

omitted). In California, a nolo contendere plea is the same as

a guilty plea “for all purposes,” and “upon a plea of nolo

contendere, the court shall find the defendant guilty.” Cal.

Penal Code § 1016(3). When a defendant enters a nolo

contendere plea, the court is required by state law to

“ascertain whetherthe defendant completely understands that

a plea of nolo contendere shall be considered the same as a

plea of guilty.” Id.

“[T]he Constitution is concerned with the practical

consequences, not the formal categorizations, of state law.”

Alford, 400 U.S. at 37. In California, the practical

consequences of a nolo contendere plea are identical to the

practical consequences of a guilty plea. Because an ordinary

California nolo contendere plea admits a factual basis for the

plea, for Alford purposes it is the same as a guilty plea. But,

by adding a citation to People v. West to either plea, a

defendant creates a “dispute between him and the State.” Id.
30 LOFTIS V. ALMAGER

 Judge Adelman’s reliance on unpublished out-of-circuit decisions, see 7

Maj. op. at 8–9, is also unavailing (even assuming that such decisions

should be given any weight) because the nolo contendere pleas involved

in those cases were not the same as and, thus, did not have the same legal

significance as a West plea.

at 32. Otherwise, the defendant’s express reference to 7

People v. West when entering his plea becomes meaningless.

In sum, when a defendant enters a plea which, although

admitting factual guilt, simultaneously protests his innocence,

the trial court must ensure that the plea is intelligent by

determining that there is a factual basis for the plea,

regardless of the nomenclature. Loftis entered a plea which

admits factual guilt, but simultaneously protested his

innocence by citing People v. West. The trial court violated

clearly established law under Alford when, under these

circumstances, it failed to determine the existence of a factual

basis for Loftis’ plea.

III

A

The California Court of Appeal assumed that the trial

court committed error, but determined that the error was

harmless. Even when a state court determines that an error is

harmless beyond a reasonable doubt, which the state court did

not do in this case, this Court “need not conduct an analysis

under AEDPA of whether the state court’s harmlessness

determination on direct review . . . was contrary to or an

unreasonable application of clearly established federal law.”

Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010)
LOFTIS V. ALMAGER 31

 Judge Silverman argues that we must defer to the California Court of 8

Appeal’s harmless error analysis. This is contrary to the rule, however,

that “we apply the Brecht test without regard for the state court’s

harmlessness determination.” Pulido, 629 F.3d at 1012. This principle

applies even where the harmlessness determination involves, as is often

the case, the application of state law. See, e.g., Lawson v. Borg, 60 F.3d

608, 612 (9th Cir. 1995) (addressing de novo whether the jury’s

consideration of extrinsic evidence bearing on intent to commit robbery

was harmless). As Judge Silverman recognizes, we defer to state court

interpretations of state law, but, in this case, there is no such interpretation

of state law to defer to. The harmlessness question is simply whether

there is sufficient evidence in the record to support a second-degree

murder conviction. Compare Bradshaw v. Richey, 546 U.S. 74, 76 (2005)

(per curiam) (holding that a federal habeas court must defer to a statecourt interpretation of the transferred intent doctrine as applied to a state

murder statute).

(citing Fry v. Pliler, 551 U.S. 112, 119-20 (2007)); see also

Merolillo v. Yates, 663 F.3d 444, 454-55 (9th Cir. 2011). 

Instead, when evaluating a constitutional error in a pleataking on habeas, we ask “whether the state court’s error . . .

had a ‘substantial and injurious effect’ on [petitioner].”

Buckley, 441 F.3d at 697 (quoting Brecht v. Abramson,

507 U.S. 619, 637 (1993)). When a trial court fails to ensure

a factual basis for an Alford plea on direct appeal we ask

whether there is “[s]ufficient evidence indicating guilt” and

“need not convince [ourselves] of guilt beyond a reasonable

doubt.” King, 257 F.3d at 1022; see also Neel, 547 F.2d at

96. Accordingly, if there is insufficient evidence indicating

Loftis’ guilt, the failure to establish a factual basis for his plea

had a substantial and injurious effect on him. See Buckley,

441 F.3d at 698 (holding that the error had a “substantial and

injurious effect” on petitioner because it caused him to

receive a longer sentence).8
32 LOFTIS V. ALMAGER

B

In California, second-degree “[m]urder is the unlawful

killing of a human being . . . with malice aforethought.” Cal.

Penal Code § 187. There are three types of second degree

murder: (1) “unpremeditated murder with express malice,”

(2) “implied malice murder,” and (3) “second degree felony

murder.” People v. Swain, 909 P.2d 994, 998 (Cal. 1996).

The first type clearly does not apply in this case. As I explain

below, there is insufficient evidence supporting a seconddegree murder conviction under either an implied malice or

a felony murder theory.

1

“[A] killer acts with implied malice only when acting

with an awareness of endangering human life.” People v.

Knoller, 158 P.3d 731, 739 (Cal. 2007). In Knoller, the

California Supreme Court reversed an intermediate appellate

court which had held that a theory of implied malice “can be

based simply on a defendant’s awareness of the risk of

causing serious bodily injury to another.” Id. at 732; see also

People v. Phillips, 414 P.2d 353, 363 (Cal. 1966) (approving

second-degree murder instruction that the killing must result

from the defendant’s act, “the natural consequences of which

are dangerous to life, which act is deliberately performed by

a person who knows that his conduct endangers the life of

another”) (emphases added), overruled on other grounds by

People v. Flood, 957 P.2d 869, 882 (Cal. 1998).

Under these standards, the trial court did not have a

sufficient factual basis to conclude that Loftis was aware that

his actions endangered Celena’s life. Assuming, without

deciding, that this Court can rely on the probation report that
LOFTIS V. ALMAGER 33

was produced after the plea colloquy, nothing in the probation

report supports a finding of guilt. According to the probation

report, after Celena ingested the crystal meth, she began to

get “‘crazy,’ by freaking out, getting hot and shaking.” There

is absolutely no indication that Loftis knew at that point that

Celena’s life was in danger. Later, in the car, Loftis “told the

others he wanted to take her to the hospital,” but “Saiz said

no, that she was gone (dead).” Thus, once Loftis

demonstrated an awareness that Celena’s life was in danger

he believed that he could no longer take any action to save

her life because she was already dead. The fact that Loftis

wanted to take Celena to the hospital when he realized the

severity of her condition suggests that he had not recognized

that her life was in danger when she was ill earlier in the

evening. See People v. Whisenhunt, 186 P.3d 496, 527 (Cal.

2008) (holding that there was no substantial evidence to

support a theory of implied malice murder in a case in which

testimony indicated that the defendant was initially “vaguely

concerned about [the victim]’s condition,” and “did not

become seriously concerned about [the victim]’s condition

until several hours later . . . at which point . . . he

immediately” sought medical help).

2

The State does not argue that the facts in this case support

an implied malice theory of second-degree murder. Instead,

the State argues that the probation report supports a theory

under which the actus reus of the murder was Loftis’ failure

to act after providing Celena with drugs. The State does not

explain how this theory maps onto any of California’s three

types of second-degree murder. See Swain, 909 P.2d at 998.

And the State does not cite any statute or case supporting its
34 LOFTIS V. ALMAGER

 Even assuming that, as the state court found, Loftis could have been 9

convicted based on an omission – which requires an underlying duty to act

– there is still nothing in the record to indicate that Loftis failed to act and

knew that his failure endangered Celena’s life.

contention that this theory is sufficient for a second-degree

murder conviction.9

The State’s argument is closest to arguing that there is a

sufficient factual basis for second-degree felony murder. But

in order to be convicted based on second-degree felony

murder, the defendant had to commit an “inherently

dangerous felony,” which is “an offense carrying a high

probability that death will result.” People v. Patterson, 778

P.2d 549, 553, 558 (Cal. 1989) (internal quotation marks

omitted). “In determining whether a felony is inherently

dangerous, the court looks to the elements of the felony in the

abstract, not the particular facts of the case, i.e., not to the

defendant’s specific conduct.” People v. Hansen, 885 P.2d

1022, 1026 (Cal. 1994) (internal quotation marks omitted),

overruled on other grounds by People v. Sarun Chun, 203

P.3d 425, 442 (Cal. 2009). The State has not cited, and we

are not aware of, any California case which has held that

furnishing crystal meth, or any other felony for which there

is a factual basis in this case, is inherently dangerous for the

purpose of the second degree felony murder rule. Compare,

e.g., People v. James, 74 Cal. Rptr. 2d 7, 23 (Ct. App. 1998)

(manufacturing meth is an inherently dangerous felony). Nor

does the State argue that this Court should establish that

furnishing crystal meth is an inherently dangerous felony.

Accordingly, the State’s alternate theory fails.
LOFTIS V. ALMAGER 35

 Loftis also separately claims that his plea was not intelligent and 10

voluntary. I would dismiss as unexhausted any claim that his plea was not

intelligent and voluntary that is not based on his Alford argument.

IV

Because I conclude that there is insufficient evidence

indicating Loftis’ guilt, the trial court’s failure to establish a

factual basis for his plea had a substantial and injurious

effect. I would therefore reverse the district court’s 10

judgment denying the petition for writ of habeas corpus and

remand with directions to issue a conditional writ releasing

Loftis from custody, unless, within a reasonable period of

time, the State recommences proceedings against Loftis. I

respectfully dissent.