Cesar Sarausad v. Carol Porter, Cesar Sarausad v. Carol Porter

479 F.3d 671, 2007 U.S. App. LEXIS 5264, 2007 WL 675991

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 7, 2007
• Docket: 05-35062, 05-35192
• Status: Published

Opinions

Opinion by Judge William A. Fletcher; Partial Concurrence and Partial Dissent by Judge Reinhardt; Dissent by Judge Bybee

WILLIAM A. FLETCHER, Circuit Judge.

Petitioner Cesar Sarausad brings a petition for habeas corpus under 28 U.S.C. § 2254, challenging his second-degree murder and two attempted second-degree murder convictions. We hold that the evidence was sufficient to support the convictions under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, based on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), we hold that ambiguous jury instructions on accomplice liability, in combination with other factors, unconstitutionally relieved the State of its burden of proof of an element of the crimes with which Sarausad was charged.

I. General Background

Sarausad is a naturalized citizen who immigrated as a child from the Philippines. At the time of the events in question, Sarausad was a 19-year-old student at the University of Washington in Seattle. He had recently graduated from Ingraham High School in Seattle. While still in high school, Sarausad had tutored other minority students in mathematics. Sarausad had become friends with some of his tutees and had eventually joined them gang, the 23rd Street Diablos (“the Diablos”).

On the morning of March 23, 1994, Sa-rausad picked up three of his friends, Gerard Abad, Levi Arakelyan, and Lucas Gosho. These three were either Diablo members or associates. The four then drove in Sarausad’s car to the Pink Pantry convenience store where they met Jerome Reyes, Gaurav Nayar, Brian Ronquillo, Michael Marckx, and Rocky Galbay, also members or associates of the Diablos. Reyes told the group that he had recently been chased from Ballard High School by members of another gang, the Bad Side Posse (“the BSP”). The group decided to go to Ballard to confront the BSP.

The group first went to Shorewood High School, across the street from the Pink Pantry, to see if another member of the Diablos, Michael Vicencio, would join them. Vicencio told them that he would meet them later at the 7-Eleven. The group then went, without Vicencio, to Ballard High School in Sarasaud’s and Na-yar’s cars. Sarausad’s car was in the lead. They drove past an area of the school where BSP members were thought to be, shouting insults, showing gang signs, and waving bandanas. They came back a few minutes later and stopped their cars near a group of six to ten students. They got out of the cars, and a yelling and pushing match ensued. After a short time, someone yelled that the police were there. The group got back into the cars and left. As they drove away, some of the Ballard students yelled that they were “weak.”

The group then went to Nayar’s house, but Sarausad, Abad, and Reyes went to the 7-Eleven to get Vicencio. Vicencio followed Sarausad back to Nayar’s house in his car. Before Vicencio entered the house, Ronquillo met him outside and asked for Vicencio’s gun. Vicencio gave the gun to Ronquillo. There is no evidence that Sarausad was present when Ronquillo asked for and was given the gun. At Nayar’s house the group listened to music, danced, and initiated a new member into the gang. They left when Nayar told them that his mother would be coming home soon.

The group got into two cars, this time Sarausad’s and Vicencio’s. Though he was carrying Vicencio’s gun, Ronquillo rode in Sarausad’s rather than Vicencio’s car. Sa-rausad stopped his car a few blocks away from Ballard High School, and Vicencio pulled up beside him. There was a brief conversation between the people in the two cars. They then continued on to the school with Sarausad leading, as he had done on the first trip.

Melissa Fernandes, Ryan Lam, and Tam Nguyen were standing outside the school. As he approached, Sarausad slowed down to perhaps five miles per hour and drove closer to the curb. As Sarausad slowed the car, Ronquillo fired between four and ten shots from the front passenger seat. Lam and Nguyen dropped to the ground and were unharmed. Melissa Fernandes was hit. She died the next day at the hospital. Brent Mason, a student who had just stepped out of shop class, was struck in the leg by a bullet fragment. Sarausad and Viceneio both drove away rapidly, with Sarausad’s car still in the lead.

After leaving the school, the two cars stopped and Ronquillo transferred Vicen-cio’s gun to Vicencio’s car. Then Sarausad and Viceneio both drove to the Northgate mall. Sarausad left the others at the mall and went home. The gun used in the murder was later destroyed by other members of the group.

The State prosecuted Ronquillo (the shooter), Sarausad (the driver), and Reyes (a passenger in the back seat of Sarausad’s car). The State offered plea agreements and lenient treatment to others in the group on the condition that they testify against Ronquillo, Sarausad, and Reyes.

All three defendants were charged with one count of first-degree murder, two counts of attempted first-degree murder, and one count of second-degree assault. The theory of the State’s case against Sa-rausad and Reyes was that they were accomplices, and were therefore guilty of murder despite not having fired any shots. The only seriously contested issue at 2556 Sarausad’s trial was whether he had the requisite knowledge to be an accomplice to murder. At the time of his trial, it was unclear under Washington law whether an accomplice had to have knowledge that the principal merely intended to commit a crime, or whether the accomplice had to know that the principal intended to commit the particular crime in question.

Ronquillo was convicted on all counts as charged. Sarausad was convicted of the lesser-included crimes of one count of second-degree murder and two counts of attempted second-degree murder, and of one count of second-degree assault. The jury hung, and a mistrial was declared, as to Reyes.

Sarausad’s counsel moved for a new trial. In a declaration in support of the motion, Sarausad’s counsel stated that during a post-verdict interview, jurors stated that the jury had been confused about what was required to prove accomplice liability. The court denied the motion. 'Sarausad’s counsel then moved for reconsideration, attaching declarations in which two jurors stated that the jury had been confused about accomplice liability. The court denied the motion for reconsideration. Sarausad was then sentenced to more than 27 years in state prison.

Sarausad’s convictions were affirmed on direct appeal by the Washington Court of Appeals. State v. Ronquillo, 1998 WL 87641, at *9 (Wash.Ct.App. Mar.2, 1998). The Washington Supreme Court denied review. State v. Ronquillo, 136 Wash.2d 1018, 966 P.2d 1277 (1998). Sarausad then sought collateral review through a personal restraint petition (“PRP”) in the Washington Court of Appeals. The Court of Appeals denied relief, see Sarausad v. State, 109 Wash.App. 824, 39 P.3d 308 (2001), and the Washington Supreme Court denied review.

Sarausad then sought a writ of habeas corpus in federal district court under 28 U.S.C. § 2254, challenging his second-degree murder and two attempted second-degree murder convictions. He did not challenge his second-degree assault conviction. In a thorough Report and Recommendation, the magistrate judge recommended that Sarausad’s habeas petition be granted on two grounds — first, that there was insufficient evidence to convict Sarau-sad, and, second, that the jury instructions, in combination with other factors, unconstitutionally relieved the State of — its burden of proof. The district court agreed with the magistrate judge’s recommendation on both grounds and granted the writ subject to the State’s election to retry Sarausad.

The State appeals. Sarausad cross-appeals, contending, inter alia, that the district court erred in holding that double jeopardy does not bar retrial after reversal of a conviction for insufficient evidence. Sarausad’s release has been stayed pending appeal.

We reverse the decision of the district court on the sufficiency-of-the-evidence ground. However, we affirm on the ground that the State was improperly relieved of its burden of proof. We need not reach Sarausad’s claims on cross-appeal.

II. Standard of Review

We review de novo the district court’s decision to grant a habeas petition under 28 U.S.C. § 2254. Ramirez v. Castro, 365 F.3d 755, 762 (9th Cir.2004) (as amended). Because Sarausad filed his petition after April 16, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies. Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir.2004). AED-PA provides that a federal habeas court shall not grant a writ of habeas corpus from a state court unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Section 2254(d)(1) establishes a two-part test. First, there must be clearly established Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 381, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Second, the state court decision must either be “contrary to” or an “unreasonable application” of that precedent. Id. at 384-86, 120 S.Ct. 1495. The state court is not required to cite the controlling Supreme Court precedent so long as its decision is not “contrary to” or an “unreasonable application” of that precedent. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam).

The terms “contrary to” and “unreasonable application” have independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A state court’s decision is “contrary to” clearly established Supreme Court precedent 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, 529 U.S. at 413, 120 S.Ct. 1495. A state court’s decision is an unreasonable application of clearly established Supreme Court precedent “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 prisoner’s case.” Id.; see Gibson v. Ortiz, 387 F.3d 812, 814 (9th Cir.2004). The “unreasonable application” clause requires more than that the state court decision be incorrect. Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Rather, a federal ha-beas court making an “ ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409, 120 S.Ct. 1495. This analysis imposes a “ ‘highly deferential standard for evaluating state-court rulings’” and “ ‘demands that state court decisions be given the benefit of the doubt.’ ” Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.2003) (citations omitted).

In determining whether a state court decision is “contrary to” or an “unreasonable application” of federal law under § 2254(d)(1), we look to the last reasoned decision of the state court. Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir.2005). We therefore review the Washington Supreme Court’s written order denying Sa-rausad’s petition for review of the Court of Appeals’ decision. To the extent that this denial relies on the Washington Court of Appeals’ denial of the PRP, we review that decision as well.

III. Discussion

A. Sufficiency of the Evidence

Under clearly established Supreme Court case law, due process requires that “no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (explaining In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). To determine whether this due process right has been violated, the appropriate inquiry before the passage of AEDPA was a straightforward question of “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original). We have recently joined our sister circuits in using § 2254(d)(1) to evaluate a state court’s sufficiency-of-the-evidence determination under Jackson. See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.2005) (as amended); see also Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir.2002); Sanford v. Yukins, 288 F.3d 855, 863 (6th Cir.2002); Piaskowski v. Bett, 256 F.3d 687, 691 (7th Cir.2001); Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir.2001). Under 28 U.S.C. § 2254(d)(1), we inquire whether a state court determination that the evidence was sufficient to support a conviction was an “objectively unreasonable” application of Jackson. See Juan H., 408 F.3d at 1275 n. 13; see also Smith v. Mitchell, 437 F.3d 884, 889 (9th Cir.2006) (“Our task under AEDPA ... is to determine whether the decision of the[state court], holding that the evidence was sufficient to convict[the defendant], was an unreasonable application of Jackson.”).

Section 2254(d)(1) plainly applies to Jackson cases. A state court must decide under Jackson whether the evidence, viewed in the light most favorable to the prosecution, would allow any rational trier of fact to find the defendant guilty beyond a reasonable doubt. If the state court affirms a conviction under Jackson, a federal court is asked under § 2254(d)(1) to decide whether the state court adjudication “resulted in a decision that ... involved an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States.” That is, we are asked to decide whether the state court’s application of Jackson was “objectively unreasonable.” Juan H., 408 F.3d at 1275 n. 13.

By contrast, § 2254(d)(2) is not readily applicable to Jackson cases. Under § 2254(d)(2), the federal court must decide whether the state court adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” (Emphasis added.) Section 2254(d)(2) does not describe the task of a court in performing a Jackson analysis. A court under Jackson makes no “determination of the facts” in the ordinary sense of resolving factual disputes. Rather, the court views the evidence in the light most favorable to the prosecution without resolving any disputed factual questions. Our task under AEDPA in reviewing a state court’s holding applying Jackson is not to decide whether that court unreasonably determined disputed facts. It is, rather, to decide whether the state court unreasonably applied the Jackson test of “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

We therefore evaluate a state court’s resolution of a Jackson sufficiency-of-the-evidence claim in all cases under § 2254(d)(1) rather than § 2254(d)(2), as we have already held in Juan H. The First Circuit has adopted guidelines for applying the “objective unreasonableness” test under § 2254(d)(1) to a state court decision applying Jackson. We believe that these guidelines are useful, though not all of them will necessarily apply in any particular case. The guidelines are as follows:

(1) The focus of the inquiry is on the state court decision;

(2) Even with the deference due by statute to the state court’s determinations, the federal habeas court must look to the “totality of the evidence” in evaluating the state court’s decision;

(3) The failure of the state court to consider at all a key argument of the defendant may indicate that its conclusion is objectively unreasonable; however, the paucity of reasoning employed by the state court does not itself establish that its result is objectively unreasonable;

(4) The failure of a state court to give appropriate weight to all of the evidence may mean that its conclusion is objectively unreasonable; and

(5) The absence of cases of conviction precisely parallel on their facts does not, by itself, establish objective unreasonableness.

Hurtado, 245 F.3d at 18.

In performing a Jackson analysis, “ ‘[cjireumstantial evidence and inferences drawn from [the record] may be sufficient to sustain a conviction.’ ” Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir.1995) (quoting United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir.), amended by 798 F.2d 1250 (9th Cir.1986)). However, “ ‘mere suspicion or speculation cannot be the basis for creation of logical inferences.’ ” Id (quoting Lewis, 787 F.2d at 1323). Where behavior is consistent with both guilt and innocence, the burden is on the State to produce evidence that would allow a rational trier of fact to conclude beyond a reasonable doubt that the behavior was consistent with guilt. United States v. Bautista-Avila, 6 F.3d 1360, 1363 (9th Cir.1993). However, “the prosecution need not affirmatively ‘rule out every hypothesis except that of guilt[.]’ ” Wright v. West, 505 U.S. 277, 296, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (citation omitted). A jury’s credibility determinations are “entitled to near-total deference under Jackson.” Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir.2004).

The Jackson standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir.2004) (en banc) (internal quotation marks omitted). Under Washington law, Sarausad is guilty based on an accomplice liability theory if he “acted with knowledge that his ... conduct would promote or facilitate the[murder].” State v. Cronin, 142 Wash.2d 568, 14 P.3d 752, 759 (2000); see State v. Roberts, 142 Wash.2d 471, 14 P.3d 713, 736 (2001) (as amended). Under Roberts and Cronin, it is not enough under Washington law that the accomplice had knowledge that the principal would engage in some kind of crime. He must have had knowledge that the principal would engage in the crime actually committed. Roberts, 14 P.3d at 736; Cronin, 14 P.3d at 759. He need not be a lawyer. That is, he does not need to have “specific knowledge of the elements of the participant’s crime.” In re Domingo, 155 Wash.2d 356, 119 P.3d 816, 820 (2005) (en banc). But he does need to have “ ‘general knowledge’ of the crime charged” against the principal. Id.

In ruling on Sarausad’s PRP, the Washington Court of Appeals held that “when viewed in the light most favorable to the State” the circumstantial evidence presented at trial was “sufficient to allow a rational jury reasonably to infer that Sarausad knowingly facilitated the drive-by shooting.” Sarausad v. State, 109 Wash.App. 824, 39 P.3d 308, 319 (2001). In so holding, the court did not cite to controlling United States Supreme Court precedent, but such citation is not required. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). The Washington Supreme Court denied review in an unpublished order. We review the denial of Sarausad’s PRP to determine whether it was based on an “objectively unreasonable” application of Jackson.

In support of its holding that there was sufficient evidence to sustain Sarausad’s conviction, the Court of Appeals wrote:

[Witnesses] Gosho and Marckx testified that “capping” was discussed on the return trip to the school. At some point before the shooting, Ronquillo tied a bandana over the lower part of his face and pulled the gun out of his pants. While parked side by side with the other carload of Diablos, Sarausad said, “Are you ready?” Sarausad then drove the car in such a manner as to facilitate a drive-by shooting, not in such a manner as to stop, park the vehicle and engage in fisticuffs. An expert in gangs testified about the kind of gang mentality that requires the gang to avenge its honor when one of its members is disrespected by a rival gang, and that causes the gang members to see violence is an acceptable means of regaining lost respect.

Sarausad, 39 P.3d at 319 (footnote omitted). The Washington Supreme Court affirmed the Court of Appeals’ holding on evidentiary sufficiency without discussion of the evidence.

The Court of Appeals’ statement that the evidence showed that “Gosho and Marckx testified that ‘capping’ was discussed on the return trip to the school” is incorrect. Contrary to the Court of Appeals’ statement, Gosho never testified that “capping” (meaning “shooting”) was discussed on the return trip to the school. Gosho did testify about a conversation concerning the possibility of a shooting, but that conversation took place before the return trip to the school. The distinction is important because Sarausad was driving the car in which Gosho was riding and almost certainly would have heard the conversation had it taken place in the car. But if the conversation took place before the return trip to the school, as Gosho testified, there is no direct evidence that Sarausad heard it. Gosho never testified that Sarausad participated in or heard the conversation.

Gosho testified as follows:

Q (Prosecutor) You were asked about the plan that day. What was your understanding of the range of options with respect to shooting?

A (Gosho) I knew that it was one of the options, but I didn’t seriously think it was going to be because there were, you know, there was other options.

Q With respect to shooting being an option, do you recall what was said about that as an option?

AI can’t recall who said what. But, you know, somebody must’ve brought it up, that we could shoot as an option.

Q I’m sorry, what?

A I can’t recall one person saying that. But, you know, it was brought up as an option, so yeah.

Q What was said specifically with respect to shooting being an option?

A Well just that, you know, it was a possibility that we could, you know.

Q Was there anything mentioned with respect to a gun and shooting?

A I don’t recall exactly. But, you know, there must have been a gun if we were going to shoot.

The prosecutor sought to refresh Gosho’s memory with a police report:

Q (Prosecutor).... Do you recall at that point in the interview when Detective Maning was asking you about the discussion regarding the possibilities with respect to shooting?

A (Gosho) Yes, I do.

Q Do you recall Detective Maning saying to you, “Okay. So somebody, well, we’ve got a gun, we can shoot them”? What was your response?

A It was, “Right.”

Q You said, “Right”?

A Yeah.

Q And Detective Maning responded by saying, “I mean, I don’t know. Is that what was said?” What was your response then?

A I said, “Well, I don’t recall specifically.”

Q Detective Maning then asked you, “But somebody said, “We’ve got a gun.’ ” And what was your response?

AI said, “Yeah.”

On cross-examination, Gosho explained further:

Q (Reyes’s attorney).... The answer to Detective Maning’s question at that time, did you understand that to mean that somebody had a gun right then in [Gaurav Nayar’s] house or in the car, or that there was a gun available to that group at some point?

A (Gosho) Well, they had said that a shooting was a possibility. So obviously, you know, yeah, there must’ve been access to a gun if there was going to be — I mean, if it was a possibility.

Q You answered some questions of some of the other attorneys that this was a general conversation and you didn’t take it seriously. Is that correct?

A Right.

Q You didn’t think that a shooting was actually being planned—

A Right.

Also contrary to the Court of Appeals’ statement, Marckx did not testify that “capping” was discussed on the return trip to the school. Marckx had ridden in the back seat of Sarausad’s car on the return trip. He testified that an unidentified person in the back seat asked “Are we going to cap?” immediately before Ronquillo began to shoot. There was no “discussion” because no one had time to answer the question before the shooting started. The point is important because if there had been a “discussion” in the car before the shooting started, the discussion would have put Sarausad on notice of the possibility of such a shooting when he slowed his car in front of the school.

Marekx testified as follows:

Q (Prosecutor) Let me take you back briefly to the shooting itself when you guys were parked on 14th Avenue Northwest where you were headed down to the school. Was there any discussion about capping or shooting?

A (Marekx) I heard someone say, “Are we going to cap?”

Q What does the term “cap” mean?

A Shoot.

Q That was in your car?

A Yes.

Marekx testified that the question had been asked immediately before the actual shooting:

Q (Ronquillo’s attorney) Now, you say that prior to the shooting you heard somebody say something about capping.

A (Marekx) Yeah.

Q And that meant what to you?

A “Are we going to shoot?”

Q What did you say?

A I didn’t say anything, because right when it was said Brian [Ronquillo] was shooting.

Q You mean, he was shooting as it was being said?

A Immediately after it was said.

The testimony continued:

Q (Sarausad’s attorney).... This was a comment something to the effect of, “Are we going to cap.” Right?

A (Marekx) Um-hmm.

Q This happened just a moment or two before the actual shooting, is that correct?

A Yeah.

Q In fact, there was a single query, single question.

A Yeah.

Q There was no response to that other than the actual shooting. Is that correct?

A Yeah.

Q Before anyone could say anything in response to that, you noticed, you heard and realized the shooting was taking place.

A Yeah.

Thus, it was “objectively unreasonable” for the Washington Court of Appeals to state that “Gosho and Marekx testified that ‘capping’ was discussed on the return trip to the school.” For purposes of our AEDPA review, we disregard this purported evidence in evaluating the Court of Appeals’ conclusion that the Jackson standard had been satisfied. However, given other evidence in the record, not limited to that described by the Court of Appeals, we hold that the court’s application of Jackson was not objectively unreasonable.

Some of that other evidence was accurately described by the Court of Appeals. The court wrote that at some unspecified point before the shooting, Ronquillo tied a bandana over the lower part of his face; that when the two cars were parked side-by-side before going back for the second trip to Ballard High School, Sarausad asked, “Are you ready?”; and that Sarau-sad slowed his car in front of the school in a manner that facilitated a drive-by shooting.

Much of the other evidence was not described by the Court of Appeals. This evidence largely involves questions of when a gun was seen, when a gun was displayed or used, and when the use of a gun was discussed. Though circumstantial, this evidence goes to the likelihood that Sarausad knew that Ronquillo had a gun on the return trip to Ballard High School and knew that Ronquillo intended to use it.

The record contains evidence that it was Sarausad who went to get Vicencio at the 7-Eleven after the first trip to Ballard High School. Vicencio testified at trial that “others in the gang” knew that he had a gun. Sarausad was a member of the gang. Gosho testified that various options were discussed at Nayar’s house for a return trip to the school. He said, “[W]e might just look at them or fight them or yell at them or fight them or possibly shoot them.” The prosecutor then asked, “You said possibly shoot them. Was that an option that was discussed with everybody in the house?” Gosho answered, “Yes.”

Two witnesses testified that they thought they saw a gun in the hands of a Diablo during the first trip to the school. One of them testified that a Diablo had pulled a gun part way out of his pants. The other witness said that a Diablo had pointed something that “looked like a gun” at him. “It was either pointed at my neck or my face.... I just saw a gun was pointed at me.”

Another witness testified that she had seen a red car circling several times around Ballard High School with five or six male “kids” in it. Sarausad’s car was red. At one point, the car stopped and one of the passengers got out to pick up a hat. The witness described the passenger as having “a darker complexion.” This same witness testified that she later saw what she thought was a gun being held outside that same car:

A: [As the car] came around the corner I saw what I thought somebody pulling something back in. And at that point, I turned to my girlfriend and I said, T think I saw a gun.’ And the car, you know, sped off.

Q: Could you tell where in the car the individual might have had a weapon was?

A: Behind the driver. That’s where I saw the arm come back in.

Q: What made you think it was a weapon?

A: Well, I think it’s not — it wasn’t like anything I’ve seen as a gun, except the barrel. I could see like a glint off of the barrel on it.

The witness testified further, “And then shortly after that, I don’t know how long, heard the shots.... I would say at least six.... I mean it was constant, bang bang bang bang bang.”

Sarausad admitted in his trial testimony that he had told a detective, in an interview after the shooting, that he suspected that members of the other gang at Ballard High School had guns. However, Sarau-sad testified that he had not meant to tell the detective that he suspected this before the return to the school, but rather that he had begun to suspect this only afterwards. Sarausad further testified that, when the two cars stopped on their way back to the school, he had instructed those in the other car, “Follow me.” The prosecutor asked, “Beyond follow you, what was the plan?” Sarausad answered, ‘Well that we would drive by, drive towards them.” Sarausad testified that he was “not sure” whether Ronquillo had already pulled a bandana over his face when the car was stopped before getting back to the school.

For purposes of reviewing the Court of Appeals’ holding that there was sufficient evidence under Jackson to support Sarausad’s conviction, we assume that the jury was properly instructed on Washington’s accomplice liability law. That is, we assume, for present purposes, that the jury understood that Sarausad could be convicted of murder on a theory of accomplice liability only if he knew that Ronquil-lo intended to commit murder. The Court of Appeals described some of the evidence accurately, described some of it inaccurately, and failed to mention some of it. We have considered the evidence in the light most favorable to the prosecution, as we are required to do under Jackson. We have not considered (or described here) the evidence that contradicted or minimized the importance of the evidence favoring the prosecution. The evidence supporting the conclusion that Sarausad knew that Ronquillo planned to shoot students on the return trip to Ballard High School was somewhat thin, and it was circumstantial. However, based on our review of all the evidence in the record, we conclude that the Court of Appeals was not “objectively unreasonable” in concluding that the Jackson standard was satisfied.

B. Impermissible Shifting of Burden of Proof

Clearly established Supreme Court case law provides that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Winship, 397 U.S. at 364, 90 S.Ct. 1068. As a consequence, a jury instruction is constitutionally defective if it “ha[s] the effect of relieving the State of the burden of proof enunciated in Win-ship.” Sandstrom v. Montana, 442 U.S. 510, 521, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Clearly established Supreme Court case law specifies the standard for reviewing an ambiguous instruction: “[W]e inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (citation omitted).

The test stated in Estelle for ambiguous instructions was first articulated in deciding an Eighth Amendment challenge to a jury instruction in Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), but Estelle employed the test to decide a Due Process Clause challenge to a jury instruction outside the Eighth Amendment context. Estelle, 502 U.S. at 66-67, 112 S.Ct. 475. Estelle made a point of stating that its articulation and application of the test was established law. The Court wrote, “So that we may once again speak with one voice on this issue, we now disapprove the standard of Cage [v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) ] and Yates [v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) ], and reaffirm the standard set out in Boyde.” Estelle, 502 U.S. at 73 n. 4, 112 S.Ct. 475; see also Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (per curiam) (applying the established rule that “a jury instruction violates due process if ... there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution”) (internal quotation marks omitted); Patterson v. Gomez, 223 F.3d 959, 962 (9th Cir.2000) (same). The Court in Estelle emphasized that, in determining whether there was a “reasonable likelihood” of misunderstanding, “the instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record.” Estelle, 502 U.S. at 72, 112 S.Ct. 475 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). The Court noted in Boyde that “arguments of counsel generally carry less weight with a jury than do instructions from the court,” but they may sometimes “have a decisive effect on the jury.” Boyde, 494 U.S. at 384, 110 S.Ct. 1190.

1. Background

The only seriously contested issue during Sarausad’s trial was whether he knew that Ronquillo intended to commit murder on the return trip to Ballard High School. At the time of the trial, it was widely thought that Washington law did not require the accomplice to know what particular crime the principal intended to commit. During closing argument, the prosecutor carefully and repeatedly articulated this view of Washington law. She explained to the jury that accomplice liability was based on an “in for a dime, in for a dollar” theory. That is, if the accomplice knew that the principal intended to commit some crime — any crime — the accomplice was liable for whatever crime the principal committed, even if the accomplice had no idea that the principal intended to commit that particular crime. Thus, under this view of the law, even if Sarausad believed that Ronquillo intended only to commit assault, Sarausad was nevertheless liable as an accomplice for the murder actually committed by Ronquillo.

In her closing argument, the prosecutor said:

Under the laws of the State of Washington, people who help commit crimes, people who set the wheels in motion, people who assist in the commission of crimes are called accomplices or aiders and abettors, as we more commonly know them to be. And in the eyes of the law, you are no less guilty because you drive the getaway car or because you solicit a crime to occur. You’re no less guilty for helping than you are for pulling the trigger.

The defendants, Mr. Sarausad and Mr. Reyes, are classic accomplices. And let’s talk a little bit about the law of accomplice liability as it exists in our state. You’re going to have two instructions that talk about accomplice liability....

Let me give you a good example of accomplice liability. A friend comes up to you and says, “Hold this person’s arms while I hit him.” You say, “Okay, I don’t like that person anyway.” You hold the arms. The person not only gets assaulted, he gets killed. You are an accomplice and you can’t come back and say, ‘Well, I only intended this much damage to happen.” Your presence, your readiness to assist caused the crime to occur and you are an accomplice. The law in the State of Washington says, if you’re in for a dime, you’re in for a dollar. If you’re there or even if you’re not there and you’re helping in some fashion to bring about this crime, you are just as guilty.

The defendant, Mr. Sarausad, classic accomplice in this case. He’s the driver, he’s the wheelman....

Both these cases, ladies and gentlemen, the defendants, Mr. Sarausad and Mr. Reyes, they were both present and they were certainly ready to assist....

They were all there that day, especially these three, ready to back each other up in whatever happened. In for a dime, they were in for a dollar and they were sticking together.

In response, Sarausad’s lawyer argued that' Washington accomplice liability was not based on “in for a dime, in for 2575 a dollar.” In rebuttal, the prosecutor again stated that this was, indeed, Washington law. She said:

And I’ve told you the old adage, you’re in for a dime, you’re in for a dollar. If their logic was correct, they’re not ever an accomplice to anything. The getaway driver for a bank robbery would say, “I just told him to rob them, I didn’t tell him to shoot him, I didn’t do anything.” The example I gave you earlier, “I just told my friend to hold the arms down of this person while he hit him, I didn’t tell him to kill him, I’m not guilty of anything.” If you’re in for a dime, you’re in for a dollar.

.... In for a dime, you’re in for a dollar.

The defendant, Mr. Ronquillo, did not act alone. He acted with the assistance of the driver, Mr. Sarausad[.]

The accomplice liability instructions in Sarausad’s case were based on Wash. Rev. Code § 9A.08.020. Jury Instruction 45 stated the general concept of accomplice liability under Washington law: “You are instructed that a person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of the crime.” Instruction 46 then provided a definition of accomplice liability:

A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:

(1) solicits, commands, encourages, or requests another person to commit the crime or

(2) aids or agrees to aid another person in planning or committing the crime.

Instruction 47 defined intent: “A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime.” Instruction 48 defined knowledge: “A person knows or acts knowingly or with knowledge when he or she is aware of a fact, facts or circumstances or result described by law as being a crime. Acting knowingly or with knowledge also is established if a person acts intentionally.” ¹ (Emphasis added to all instructions.)

On the third day of its deliberations, the jury sent out the following note:

Request clarification on instruction No. 11 & No. 12 [first-degree murder instruction as to Sarausad] element (3) [that the intent to cause the death was premeditated]; does the “intent” apply to (the defendant only) or to (the defendant or his accomplice)?

The judge responded: “Refer to instructions 46 and 47 and consider your instructions as a whole.”

On the fifth day of deliberations, the jury asked to “rehear” Sarausad’s testimony. The judge responded that the “testimony will not be repeated.” On the sixth day of deliberations, the jury sent out the following note:

Reference: Instruction No. 17 [second-degree murder instruction as to Sarau-sad] in “the crime of murder in the second-degree (intentional).”

Question: Does intentional apply to only the defendant or only his accomplice?

The judge responded that the jury should “[r]efer to instructions 45 & 46 and consider the instructions as a whole.”

Finally, on the seventh day of deliberations, the jury sent out the following note:

We are having difficulty agreeing on the legal definition and concept of “accomplice.”

Question: When a person willing[ly] participates in a group activity, is that person an accomplice to any crime committed by anyone in the group?

After conferring with counsel, the judge told the jury to “[r]eread instructions # 45, 46, 47 and 48, and consider your instructions as a whole.” The next day, the jury returned a verdict finding Sarausad guilty of second-degree murder, two attempted second-degree murders, and second-degree assault.

Sarausad’s counsel moved for a new trial. In a declaration in support of the motion, counsel stated that during a post-verdict interview, at which both the trial judge and counsel were present, the jury foreman and other members of the jury stated that they did not think Sarausad intended to kill anyone, that they had been confused by the concept of accomplice liability, and that they had been swayed by the prosecutor’s “in for a dime, in for a dollar” theory. The court denied the motion for a new trial.

Sarausad’s counsel then moved for reconsideration. This time, he supplemented his motion with sworn declarations from two jurors. Both jurors stated that they found the accomplice liability instructions to be very confusing and that they did not think Sarausad intended to facilitate the shootings. The court denied the motion for reconsideration. Sarausad was then sentenced to more than 27 years in state prison.

On direct appeal to the Washington Court of Appeals, Sarausad argued that “in for a dime, in for a dollar” was an inaccurate statement of Washington law of accomplice liability. Specifically, in the words of the Court of Appeals, Sarausad argued “that to convict a person as an accomplice to a substantive crime that requires proof of intent, the State must prove that the accomplice intended to help the principal commit that particular crime.” State v. Ronquillo, 1998 WL 87641, at *8 (Wash.Ct.App. Mar.2, 1998).

The Court of Appeals disagreed with Sarausad’s argument. The court first quoted part of the Washington accomplice liability statute. In relevant part, that statute provides:

(1) A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable.

(2) A person is legally accountable for the conduct of another person when:

(c) He is an accomplice of such other person in the commission of the crime.

(3) A person is an accomplice of another person in the commission of a crime if:

(a) With knowledge that it will promote or facilitate the commission of the crime, he

(i) solicits, commands, encourages, or requests such other person to commit it; or

(ii) aids or agrees to aid such other person in planning or committing it [J

Wash. Rev.Code § 9A.08.020 (1994) (emphasis added). The court then quoted Instruction 46, which closely tracked the statutory language. The only difference between the statute and the instruction was that the word “it,” which appears twice in the statute, was each time replaced by the words “the crime” in the instruction.

The Court of Appeals concluded that the statute, as well as the jury instructions, were based on the “in for a dime, in for a dollar” theory of accomplice liability. The court agreed with the prosecution’s statement of the law to the jury during her closing argument. It held that the statute and the instructions did not require that an accomplice have knowledge of the particular crime the principal intended to commit.

The Court of Appeals wrote:

Sarausad misstates the law in Washington when he asserts that to be convicted as an accomplice, the State must prove that the accomplice had the mental state required for commission of the charged offense. His argument that an accomplice is only liable for that substantive offense which he willfully sought to bring about has specifically been rejected in Washington.

In order to convict an accomplice of intentional murder, the State need not show that the accomplice had the intent that the victim would be killed. ROW 9A.08.020(3)(a) has no such requirement.

Accomplice liability in Washington is premised on the following principles: (1) To convict of accomplice liability, the State need not prove that principal and accomplice shared the same mental state, (2) accomplice liability predicates criminal liability on general knowledge of a crime, rather than specific knowledge of the elements of the principal’s crime, and (3) an accomplice, having agreed to participate in a criminal activity, runs the risk that the primary actor will exceed the scope of the preplanned illegality.

Ronquillo, 89 Wash.App. 1037, 1998 WL 87641, at *9 (citations omitted). The Washington Supreme Court denied review without comment. State v. Ronquillo, 136 Wash.2d 1018, 966 P.2d 1277 (1998).

In two other cases, decided shortly thereafter, the Washington Supreme Court repudiated the “in for a dime, in for a dollar” theory that had been the basis for the Court of Appeals’ affirmation of Sarau-sad’s conviction. In State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2001) (as amended), Jury Instruction 7 had defined accomplice liability as follows:

You are instructed that a person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of a crime.

A person is an accomplice in the commission of a crime ... if, with knowledge that it will promote or facilitate its commission> he either:

(a) solicits, commands, encourages or requests another person to commit the crime; or

(b) aids another person in planning or committing the crime [.]

Id. at 735 (italics in original; underlining added). In rejecting the “in for a dime, in for a dollar” theory of accomplice liability and disapproving the jury instruction, the Washington Supreme Court wrote, “The Legislature ... intended the culpability of an accomplice not extend beyond the crimes of which the accomplice actually has ‘knowledge,’.... In contrast, jury instruction 7 here essentially allowed the jury to impose strict liability on Roberts. The instruction, therefore, improperly departed from the language of the statute.” Id. at 735-36.

In State v. Cronin, 142 Wash.2d 568, 14 P.3d 752 (2000), the Washington Supreme Court “adhere[d]” to its decision in Roberts:

[T]he fact that a purported accomplice knows that the principal intends to commit “ ‘a crime’ ” does not necessarily mean that accomplice liability attaches for any and all offenses ultimately committed by the principal. See Roberts, 14 P.3d at 736. In our judgment, in order for one to be deemed an accomplice, that individual must have acted with knowledge that he or she was promoting or facilitating the crime for which that individual was eventually charged.

Id. at 758 (emphasis in original).

Sarausad brought his PRP in the Washington Court of Appeals after the Washington Supreme Court decided Roberts and Cronin. Now sitting with three different judges from those who heard Sarau-sad’s direct appeal, the Court of Appeals wrote that the previous Court of Appeals panel had misinterpreted the Washington statute when it denied relief in Sarausad’s direct appeal based on the “in for a dime, in for a dollar” theory. Sarausad v. State, 109 Wash.App. 824, 39 P.3d 308, 313-14 (2001). Recognizing that Roberts and Cronin had repudiated that reading of the statute, the Court of Appeals now held that Sarausad’s jury instructions “mirrored” the state statute on accomplice liability “and thus did not suffer from the fatal flaw in State v. Roberts.” Id. at 313. The Court of Appeals did not mention the fact that the prior panel on direct appeal in Sarausad’s case had held essentially the opposite. That is, it did not mention that the prior panel of the Court of Appeals had held that the Washington statute and Sarausad’s jury instructions meant the opposite of what the Washington Supreme Court later held the statute to mean in Roberts and Cronin, and that the prior panel had held that the statute and jury instructions were based on the now-repudiated “in for a dime, in for a dollar” theory of accomplice liability.

Sarausad specifically argued to the second Court of Appeals panel that the prosecutor’s “in for a dime, in for a dollar” argument misstated the law of accomplice liability and misled the jury, thereby relieving the State of its burden to prove every element of the crime beyond a reasonable doubt. He argued that “the prosecutor erroneously assumed, and argued, that the jury could find Sarausad guilty as an accomplice to murder if he had the purpose to facilitate an offense of any kind whatsoever, even a shoving match or fist fight.” Id. at 316-17. The Court of Appeals responded, “But this is not an accurate description of the prosecutor’s actual argument.” Id. at 317. It continued, “[T]he prosecutor did not in fact argue that even if Sarausad drove to Ballard High School the second time having the purpose to facilitate only another shoving match or a fist fight, he nevertheless was guilty of murder.” Id. at 318 (emphasis in original). “Not once did the prosecutor suggest to the jury that it could or should convict Sarausad even if it believed that he returned to Ballard High School for the purpose of facilitating nothing more than another shoving match or a fistfight....” Id. at 319.

These statements by the Court of Appeals are flatly contradicted by the record. As is obvious from the trial transcript (quoted at length above), the prosecutor argued clearly, emphatically, and repeatedly that Sarausad could be convicted of accomplice liability for murder even if he believed that Ronquillo intended merely to commit assault. We quote again only a small portion of the prosecutor’s argument:

Let me give you a good example of accomplice liability. A friend comes up to you and says, “Hold this person’s arms while I hit him.” You say, “Okay, I don’t like that person anyway.” You hold the arms. The person not only gets assaulted, he gets killed. You are an accomplice and you can’t come back and say, “Well, I only intended this much damage to happen.” ... The law in the State of Washington says, if you’re in for a dime, you’re in for a dollar.

Based in part on its incorrect description of the prosecutor’s argument, the Court of Appeals denied Sarausad’s PRP.

In an unpublished written order signed by the Court Commissioner, the Washington Supreme Court denied review. The Court Commissioner, like the Court of Appeals, did not acknowledge that the Court of Appeals had held on direct appeal that the jury in Sarausad’s case had been permitted to convict based on the “in for a dime, in for a dollar” reading of the Washington statute. Instead, the Commissioner wrote, “[H]ere the trial court correctly instructed the jury that it could convict Mr. Sarausad of murder or attempted murder as an accomplice only if it found he knowingly aided in the commission ‘the’ [sic] crime charged.” In denying the PRP, the Commissioner, like the Court of Appeals, flatly misstated the record in describing the prosecutor’s argument to the jury. The Commissioner wrote, “The prosecutor never suggested Mr. Sarausad could be found guilty if he had no knowledge that a shooting was to occur.”

2. Discussion

Under Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), we first ask whether the jury instructions were ambiguous. If the instructions were ambiguous, we then ask “in the context of the instructions as a whole and the trial record” whether there was a “reasonable likelihood that the jury has applied the instruction in a way that violates the Constitution.” Id. at 72, 112 S.Ct. 475 (citations and internal quotation marks omitted). We consider these questions in turn.

a. Ambiguous Jury Instructions

The sole contested legal issue in Sarau-sad’s trial was whether he could be convicted as an accomplice to murder and attempted murder if he did not know that Ronquillo intended to commit murder. For three reasons, we conclude that the instructions given in his case were ambiguous with respect to this issue.

First, nowhere in the jury instructions is there an explicit statement that an accomplice must have knowledge of 2585 the actual crime the principal intends to commit. The most important instructions are numbers 45 and 46. They state, in relevant part:

[Number 45:] You are instructed that a person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of the crime.

[Number 46, in part:] A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:

(1) solicits, commands, encourages, or requests another person to commit the crime or

(2) aids or agrees to aid another person in planning or committing the crime.

(Emphasis added.) The critical issue is the definition of the term “a crime,” as that term is used at the beginning of Instruction 46. That term could mean “the crime” actually committed by the principal (whatever it turned out to be), or it could mean “the crime” the accomplice had knowledge the principal intended to commit. It would be easy to add a sentence to the instructions stating which of the two possible definitions is correct, but the instructions contain no such sentence.

Second, the Washington Supreme Court held that a very similar instruction in Roberts allowed the jury to find accomplice liability based on the “in for a dime, in for a dollar” theory. Instruction 7 in Roberts is almost identical to 2586 Instruction 45 in Sarausad’s case. Instruction 7 in Roberts provided, in relevant part:

You are instructed that a person is guilty of a crime if it.is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of a crime.

Roberts, 14 P.3d at 735 (emphasis added). The only difference between the two instructions is that the words “the crime” at the very end of Instruction 45 in Sarau-sad’s case are replaced by the words “a crime” at the end of the just-quoted portion of Instruction 7 in Roberts. The Washington Supreme Court noted that the Washington accomplice statute used the words “the crime” in this place, where Instruction 7 used the words “a crime.” The Court held that under Washington law, an accomplice could be held liable for the crime committed by the principal only if he knew that the principal would commit that particular crime. Id. It then reversed Roberts’ conviction because Instruction 7 “essentially allowed the jury to impose strict liability on Roberts.” Id. at 736.

Because it uses the words “the crime” where Instruction 7 in Roberts used the words “a crime,” Instruction 45 in Sarau-sad’s case does not invite an erroneous construction to the same degree as the flawed instruction in Roberts. Indeed, in using the words “the crime,” Instruction 45 tracks the wording in the Washington accomplice liability statute more closely than Instruction 7. But the simple change from “a crime” to “the crime” in Instruction 45 does not, in our view, make the jury instructions in Sarausad’s case unambiguous, for the basic problem identified above remains: There is no sentence in the instructions specifically instructing the jury that a person can be guilty of “a crime” as an accomplice only if that person knows that “a crime” is “the crime” the principal intends to commit.

Third, and perhaps most revealing, the Washington Court of Appeals on direct appeal held that the instructions given in Sarausad’s case were consistent with the Washington statute, and that both the instructions and the statute were based on the “in for a dime, in for a dollar” theory of accomplice liability. Sarausad had argued to that court that Washington law required that an accomplice must know “the crime” the principal intended to commit. The Court of Appeals disagreed, holding that it was sufficient under Washington law that the accomplice know that the principal intended to commit “a crime,” whether it be the actual crime committed or some other crime. In reaching that conclusion, the court understood both the accomplice liability statute and the jury instructions to be based on this theory of accomplice liability.

The judges on the Court of Appeals are well-trained professionals, skilled in reading legal texts and experts in Washington law. Those judges, on direct appeal, read the statute and the jury instructions as instructing the jury to convict Sarausad as an accomplice even if he did not know that Ronquillo intended to commit murder. Given the Court of Appeals’ reading of the statute and the jury instructions on Sarau-sad’s direct appeal, we are hard pressed to read the very same statute and instructions as unambiguously instructing the jury to do precisely the opposite — to convict Sarausad only if he knew that Ron-quillo intended to commit murder.

The dissent argues that the jury instructions could not have been deficient because they closely tracked the language of Washington’s accomplice liability statute. The argument contains an obvious flaw. If a statute is ambiguous, any jury instruction that mirrors the statutory language must also be ambiguous. The fact that an instruction quotes from a statute does nothing to make either the statute, or the instruction, more understandable.

Criminal statutes are sometimes upheld and applied only after a court has given a narrowing or clarifying gloss to the statutory language. Many statutes, for example, fail to specify a scienter element. The Supreme Court has often held that such statutes have an implicit mens rea requirement and that trial courts must instruct jurors not to convict defendants without sufficient proof of their state of mind. Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), is typical. Liparota had been convicted under a federal statute that made it unlawful to “knowingly ... acquire[ ]” food stamps in an unauthorized manner. Id. at 420 n. 1, 105 S.Ct. 2084 (quoting 7 U.S.C. § 2024(b)(1)). Although the district court’s instructions closely tracked the language of the statute, the Supreme Court reversed Liparota’s conviction. As the Court noted, the statute did not “explicitly spell[] out the mental state required” to convict a defendant. Id. at 424,.105 S.Ct. 2084. Under one reading, it was enough that the defendant knowingly acquired food stamps. Under another reading, it was necessary to prove not only that the defendant knowingly acquired food stamps, but also that he knew that the acquisition was unauthorized. The Court insisted on the latter construction: “[T]he Government must prove that the defendant knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulations.” Id. at 433, 105 S.Ct. 2084. The district court’s instructions in Liparota, despite their adherence to the statutory language, were defective because they did not adequately convey the required mental state.

Other cases similarly illustrate that jury instructions must frequently clarify, not merely parrot, the statute of conviction. As in Liparota, the Supreme Court in Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), considered a statute that was silent on the subject of mens rea. The Court concluded that the jury should have been instructed that it could not return a conviction for unlawful possession of an automatic weapon unless the defendant knew that the “characteristics of his weapon” brought it within the scope of the statute. Id. at 604, 114 S.Ct. 1793; see also Ratzlaf v. United States, 510 U.S. 135, 149, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (holding that the jury should have been instructed that it could not convict the defendant unless he knew that his currency structuring activities were unlawful); United States v. Speach, 968 F.2d 795, 796 (9th Cir.1992) (reversing a defendant’s conviction for transporting hazardous waste under a “linguistically ambiguous” statute because the jury instructions failed to require proof that the defendant knew that the recipient of the waste lacked a permit); cf. Godfrey v. Georgia, 446 U.S. 420, 437, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (Marshall, J., concurring in the judgment) (explaining that it is inappropriate “[t]o give the jury an instruction in the form of the bare words of the statute” when those words are “hopelessly ambiguous”).

The Washington courts have had serious difficulty parsing the Washington accomplice liability statute’s knowledge requirement, at times holding that it permits an “in for a dime, in for a dollar” theory, and at times holding the opposite. The jury instructions in Sarausad’s case, which essentially tracked the statutory language, were no less confusing than the statute itself. We therefore conclude that the jury instructions were, at the very least, ambiguous on the question of whether Sa-rausad could be convicted of murder and attempted murder on a theory of accomplice liability without proof beyond a reasonable doubt that Sarausad knew that Ronquillo intended to commit murder.

b. Likelihood of Misapplication

Establishing that the jury instructions were ambiguous, and that the jury could therefore have misunderstood them, is not enough to establish a constitutional violation under Estelle. Sarausad must also establish that there is “a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” Estelle, 502 U.S. at 72, 112 S.Ct. 475 (emphasis added, internal quotation marks omitted). Under Estelle, we ask whether there is a “reasonable likelihood” that the jury applied the instruction in a way that relieved the State of its burden to prove beyond a reasonable doubt every element of the crime of accomplice liability for murder under Washington law. Id. A defendant “need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction” in order to satisfy the “reasonable likelihood” standard. Boyde, 494 U.S. at 380, 110 S.Ct. 1190. For four reasons, we believe the “reasonable likelihood” standard has been met.

First, the evidence supporting the conclusion that Sarausad knew that Ronquillo intended to commit murder on the return trip to Ballard High School was somewhat thin. As indicated above, there was no direct evidence that Sarausad knew that Ronquillo intended to commit murder, and the Washington Court of Appeals on direct review overstated the strength of the limited circumstantial evidence. We described that evidence above from the perspective of a Jackson analysis, viewing it in the light most favorable to the prosecution. Even described from that perspective the evidence against Sarausad was thin. But there was also evidence that contradicted or minimized the strength of the evidence, which we did not describe.

The dissent appears to misunderstand the import of our argument that the evidence against Sarausad was thin. We do not claim that the weakness of the evidence caused the jury to misunderstand the instructions. Rather, we contend that the fact that the jury convicted Sarausad despite the thin evidence that Sarausad knew of Ronquillo’s intent to commit murder suggests that the jury incorrectly believed that such proof was not required.

Second, the prosecutor argued clearly and forcefully for the “in for a dime, in for a dollar” theory of accomplice • liability. The prosecutor could not have been clearer in her explanation of that theory. For example, she argued to the jury in rebuttal:

And I’ve told you the old adage, you’re in for a dime, you’re in for a dollar. If their logic was correct, they’re not ever an accomplice to anything. The getaway driver for a bank robbery would say, “I just told him to rob them, I didn’t tell him to shoot him, I didn’t do anything.” The example I gave you earlier, “I just told my friend to hold the arms down of this person while he hit him, I didn’t tell him to kill him, I’m not guilty of anything.” If you’re in for a dime, you’re in for a dollar.

Third, in its notes sent to the judge during deliberations, the jury demonstrated substantial confusion about what the State was required to prove. In its first note, the jury asked for “clarification” on whether “ ‘intent’ applied] to (the defendant only) or to (the defendant or his accomplice)?” In its second note, it asked, “Does intentional apply to only the defendant or only his accomplice?” Finally, in its third note, it wrote, “We are having difficulty agreeing on the legal definition and concept of ‘accomplice.’ Question: When a person willing[ly] participates in a group activity, is that person an accomplice to any crime committed by anyone in the group?”

Fourth, after the Washington Supreme Court had clarified the meaning of the Washington statute in Roberts and Cronin, the Washington courts were able to deny Sarausad’s PRP only after misstating the record and ignoring the prosecutor’s emphatic and repeated “in for a dime, in for a dollar” argument. The Court of Appeals wrote, “[T]he prosecutor did not in fact argue that even if Sarausad drove to Ballard High School the second time having the purpose to facilitate only another shoving match or a fist fight, he nevertheless was guilty of murder.” Id. at 318 (emphasis in original). It added, “Not once did the prosecutor suggest to the jury that it could or should convict Sarausad even if it believed that he returned to Ballard High School for the purpose of facilitating nothing more than another shoving match or a fistfight....” Id. at 319. The Court Commissioner of the Washington Supreme Court echoed the Court of Appeals. The Commissioner wrote, “The prosecutor never suggested Mr. Sarausad could be found guilty if he had no knowledge that a shooting was to occur.” The statements of both the Court of Appeals and the Court Commissioner are plainly incorrect. As shown above, the record reveals that the prosecutor repeatedly made precisely the argument that the Court of Appeals and the Court Commissioner stated she did not make.

Taken together, these reasons lead us to conclude that there is a “reasonable likelihood” that the jury misapplied the ambiguous jury instructions, thereby relieving the State of its burden of proof of an element of the crimes with which Sarausad was charged. We further conclude that the state court’s decision was an “unreasonable application” of the Supreme Court’s holdings in Winship, Sandstrom, and Estelle. See 28 U.S.C. § 2254(d)(1). In so concluding, we consider neither Sarausad’s counsel’s declaration nor the two jurors’ declarations supporting Sarausad’s post-verdict motions for a new trial. The magistrate judge did consider the two jurors’ declarations, but the district court, citing Federal Rule of Evidence 606(b), held that the magistrate judge erred in considering them. We agree with the district court that the declarations should not have been considered by the magistrate judge. See Fed.R.Evid. 606(b); Tanner v. United States, 483 U.S. 107, 120-27, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987); United States v. Rutherford, 371 F.3d 634, 639-40 (9th Cir.2004).

c. Harmless Error

For the same reasons that we conclude that the second step of Estelle is satisfied, we conclude that the constitutional error was not harmless. The parties agree that the test applicable to this case is “whether the error had substantial and injurious effect or influence in determining the jury’s verdict.” California v. Roy, 519 U.S. 2, 5, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (per curiam) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)) (internal quotation marks omitted). The error is not harmless if we are “in grave doubt as to the harmlessness of [the] error.” Roy, 519 U.S. at 5, 117 S.Ct. 337 (quoting O’Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)) (internal quotation marks omitted). Sa-rausad’s counsel stated during closing argument to the jury, “There is no question that Cesar Sarausad assisted Brian Ron-quillo. That’s beyond dispute. [H]e drove him to the scene. The question is whether Cesar had knowledge that his assistance would promote or facilitate the crime[.]” Because the only disputed issue was whether Sarausad knew that Ronquillo intended to commit murder, relieving the State of its burden of proof on that issue was not harmless error.

C. Sarausad’s Remaining Claims

Given our holding on Sarausad’s Win-ship/Sandstrom/Estelle claim, we do not need to reach his remaining claims.

Conclusion

We affirm the district court with respect to Sarausad’s Winship/Sandstrom/Estelle claim. We remand to the district court to grant the writ and to order Sarausad’s release unless the State elects to retry him within a reasonable time.

AFFIRMED and REMANDED.

1 . Quoted in their entirety, the accomplice liability instructions were:

No. 45: You are instructed that a person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of the crime.

No. 46: A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.

A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:

(1) solicits, commands, encourages, or requests another person to commit the crime or

(2) aids or agrees to aid another person in planning or committing the crime.

The word "aid” means all assistance whether given by words, acts, encouragement, support or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.

No. 47: A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime.

No. 48: A person knows or acts knowingly or with knowledge when he or she is aware of a fact, facts or circumstances or result described by law as being a crime.

If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.

Acting knowingly or with knowledge also is established if a person acts intentionally.