The opinion
FILED
NOT FOR PUBLICATION MAR 22 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GEOFFREY BROWN, AKA John Jacob No. 09-56142
Reyes,
D.C. No. 3:07-cv-01724-BTM-
Petitioner - Appellant, RBB
v.
MEMORANDUM *
JAMES E. TILTON; EDMUND G.
BROWN, Jr.,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted March 6, 2012
Pasadena, California
Before: PREGERSON, GOULD, and TALLMAN, Circuit Judges.
Geoffrey Brown (“Brown”) appeals the district court’s denial of his habeas
corpus petition. We consider on appeal whether Brown was prejudiced by a single
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
erroneous jury instruction stating that murder is a general intent crime.
On habeas review, where a constitutional error is found, “a court must assess
the prejudicial impact of constitutional error in a state-court criminal trial under the
‘substantial and injurious effect’ standard set forth in Brecht . . . .” Fry v. Pliler,
551 U.S. 112, 121 (2007) (citing Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)); see also Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011); Ybarra v.
McDaniel, 656 F.3d 984, 995 (9th Cir. 2011); Pulido v. Chrones, 629 F.3d 1007,
1012 (9th Cir. 2010) (Brecht is the correct test for prejudice on collateral review,
therefore “we 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.”) (citing Fry, 551 U.S.
at 119-20). Brecht requires reversal only if the error had a “substantial and
injurious effect or influence on determining the jury’s verdict.” Brecht, 507 U.S. at
637 (internal citation omitted).
We review the record as a whole to determine whether there was substantial
and injurious effect. Pulido, 629 F.3d at 1012. Thus, “a single instruction to a jury
may not be judged in artificial isolation, but must be viewed in the context of the
overall charge.” Id. (quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973))
(internal quotation marks omitted).
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Here, the trial judge informed the jury of the requisite mental state shortly
after the erroneous instruction was given. The trial court subsequently provided
the correct jury instructions for murder; malice aforethought, including express and
implied malice; and second degree murder. In addition, the court responded to a
note from the jury and explicitly explained that to find Brown guilty of murder as
charged, it was necessary for the jury to find beyond a reasonable doubt each
element of murder as listed in CALJIC 8.10 and each element of second degree
murder as listed in CALJIC 8.31. The jury was therefore properly instructed that it
needed to find that “the killing was done with malice aforethought” to find Brown
guilty. Moreover, there was substantial evidence presented at trial for the jury to
find, beyond a reasonable doubt, that Brown acted with implied malice.
We hold that the instructional error was harmless because it did not have a
“substantial and injurious effect or influence in determining the jury’s verdict.”
See Brecht, 507 U.S. at 637 (internal citation omitted).
We AFFIRM the district court's denial of Brown's petition for writ of habeas
corpus.
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