Bamrick v. Garcia

360 F. App'x 958

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 4, 2010
• Docket: 06-55080
• Status: Unpublished

Opinion

MEMORANDUM **

California state prisoner Richard D. Bamrick appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Bamrick contends that similar to Gibson v. Ortiz, 387 F.3d 812, 822 (9th Cir.2004), the interplay of CALJIC Nos. 2.50 and 2.50.1 lowered the prosecution’s burden of proof at trial, resulting in a structural error requiring automatic reversal. Because the error is not structural, we review for harmlessness. See Byrd v. Lewis, 566 F.3d 855, 867 (9th Cir.2009). We conclude that Bamrick has failed to show that the error had a substantial and injurious effect on the verdict because the jury made special factual findings beyond a reasonable doubt regarding the underlying facts of the case. See Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

Panel does not grant en banc review.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.