                                                                           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                           NOT FOR PUBLICATION                              MAR 22 2012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).


                                            2
      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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