                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 04 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



TIMOTHY A. JAMES,                                No. 08-55216

             Petitioner - Appellant,             D.C. No. 2:06-cv-02882-AHM-E

  v.
                                                 MEMORANDUM *
JEANNE WOODFORD, ROBERT
AYERS, JR., and CHARLES M.
HARRISON,

             Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                     A. Howard Matz, District Judge, Presiding

                     Argued and Submitted November 3, 2009
                              Pasadena, California

Before: SCHROEDER, SILER, and IKUTA,** Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
             The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
      Timothy A. James appeals the district court’s denial of his habeas corpus

petition. He argues that an extra jury instruction on simple malice prejudiced his

conviction for second-degree murder.

      In 2003, James shot and killed Robert Rodela near the Pico-Union area

apartment complex where James lived. He was convicted of second-degree

murder. The California Court of Appeal affirmed his conviction and held that the

trial court’s use of an extra jury instruction on simple malice was harmless error.

The California Supreme Court summarily denied his petition for review. James

then filed a federal petition for a writ of habeas corpus, which the district court

denied on the ground that it was absolutely certain that the jury did not convict him

of second-degree murder based on the extra instruction.

      The only issue in this appeal is whether James was prejudiced by the extra

jury instruction on malice. James is not entitled to relief unless “[he] can establish

that the error resulted in actual prejudice.” Ho v. Carey, 332 F.3d 587, 595 (9th

Cir. 2003) (quotation marks omitted). We assess the “prejudicial impact of

constitutional error in a state-court criminal trial” under the “substantial and

injurious effect” standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993).

Fry v. Pliler, 551 U.S. 112, 122 (2007). The Brecht standard requires reversal only




                                           2
if, but for the error, there is “a reasonable probability” that the jury would have

reached a different result. Clark v. Brown, 450 F.3d 898, 916 (9th Cir. 2006).

      Applying these principles to the instant case, we conclude that James did not

suffer prejudice, because the error did not have a substantial and injurious effect on

his trial. In short, if the extra malice instruction had not been given, it is not

“reasonabl[y] probab[le]” that the jury would have reached a different result. See

Clark, 450 F.3d at 916. The evidence supported a finding of malice aforethought,

which was properly defined in the jury instructions. First, the evidence showed

that James acted intentionally when he discharged the gun (the first element of

implied malice). James himself never argued that he shot Rodela accidentally;

instead, he relied on self defense to justify his actions. To support the second

element of implied malice, that the natural consequence of James’s act was

dangerous to human life, the jury heard evidence that James shot Rodela at close

range and that the shots were fatal. Finally, the foregoing evidence supported the

final element of implied malice, that the act was deliberately and knowingly

performed with a conscious disregard for human life. Because the evidence

supports a finding of second-degree murder—namely, that James unlawfully killed

Rodela with malice aforethought—and not voluntary manslaughter, there was no

prejudice. Moreover, the erroneous instruction did not prevent the jury from


                                            3
finding imperfect self-defense, because the relevant jury instruction, CALJIC No.

8.50, stated that imperfect self-defense negates a finding of “malice,” however that

term may be defined.

      In its 2007 review of the state court’s determination, the district court

applied the absolute certainty standard, reaching its decision before the Supreme

Court’s clarification in Hedgpeth v. Pulido, 129 S. Ct. 530, 533 (2008), that our

circuit’s prior “absolute certainty standard . . . [was] plainly inconsistent with

Brecht.” Id. Thus, even though the district court applied the absolute certainty

standard, its decision to do so was in James’s favor, given that it applied a more

stringent standard of review than that announced in Pulido.

      AFFIRMED.




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