                                                                            FILED
                           NOT FOR PUBLICATION                               JAN 20 2015

                                                                         MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


EDUARDO LINARES,                                 No. 11-55814

              Petitioner - Appellant,            D.C. No. 2:09-cv-02128-DDP-
                                                 JEM
  v.

J. TIM OCHOA, Warden,                            MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                       Argued and Submitted January 5, 2015
                               Pasadena, California

Before:       KOZINSKI, W. FLETCHER and OWENS, Circuit Judges.

       1. The jury heard evidence that Linares drove Ricardo to the site of the drug

deal for $400, with the knowledge that Ricardo was carrying a gun and planned on

purchasing $28,000 worth of cocaine. The jury also heard that Linares had

participated in drug deals before and understood that his history as an informant



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                  page 2
could heighten the dangers involved. Viewing the evidence in the light most

favorable to the prosecution, see Jackson v. Virginia, 443 U.S. 307, 319 (1979), the

California Court of Appeal reasonably found that there was sufficient evidence for

a jury to convict Linares of second degree implied malice murder.


      2. Under California law, a trial court must “on its own initiative [] identify

and describe for the jury any target offense allegedly aided and abetted by the

defendant” when “the prosecution relies on the ‘natural and probable

consequences’ doctrine to hold a defendant liable as an aider and abettor.” People

v. Prettyman, 926 P.2d 1013, 1025 (Cal. 1996). Linares argues that his due

process rights were violated by the state trial court’s failure to give such an

instruction. However, the district court did not err in rejecting this claim because

the jury was properly instructed as to the elements of second degree implied malice

murder, and there is sufficient evidence to support a conviction under the theory

that Linares was a direct perpetrator. Thus, it was reasonable for the California

Court of Appeal to conclude that the trial court’s failure to instruct the jury under

an alternative theory was harmless.


      3. Linares contends that his due process rights were also violated when the

trial court initially gave the wrong jury instruction on malice. The California Court
                                                                                page 3
of Appeal reasonably concluded that this error was harmless because the trial court

provided the correct instruction, CALJIC No. 8.11, while the jury was still

deliberating Linares’s guilt of second degree murder. Moreover, the jury had been

instructed at the outset on the elements of second degree murder with CALJIC No.

8.31, which included a definition of malice that paralleled the definition in CALJIC

No. 8.11. The district court therefore did not err in rejecting this claim.


      4. The district court properly rejected Linares’s argument that the combined

effect of the alleged errors in this case necessitates reversal. The California Court

of Appeal reasonably concluded that these alleged errors—none of which were

prejudicial—did not collectively render Linares’s trial fundamentally unfair. See

Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007).


      AFFIRMED.
