                                                                              FILED
                            NOT FOR PUBLICATION                                OCT 17 2014

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



                            FOR THE NINTH CIRCUIT


BRIAN K. RANDELL,                                No. 13-15311

              Petitioner - Appellant,            D.C. No. 4:06-cv-06400-PJH

  v.
                                                 MEMORANDUM*
MARION SPEARMAN, Warden,**

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                       Argued and Submitted October 6, 2014
                             San Francisco, California

Before: WARDLAW, W. FLETCHER, and WATFORD, Circuit Judges.

       Brian K. Randell contends that the jury instructions given by the trial court

violated his right to due process because they precluded the jury from considering

whether he acted in self-defense. Randell identifies two instructions, in particular,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The clerk shall substitute Marion Spearman for Thomas L. Carey.
Fed. R. App. P. 43(c)(2).
                                                                             Page 2 of 4
that allegedly had that effect: (1) the instruction stating that a defendant may claim

self-defense if he actually and reasonably believed that “the individual killed

intended to commit a forcible and atrocious crime” against him, and (2) the

instruction stating that a defendant may claim self-defense when “there is

imminent danger that the other person” will cause him great bodily injury. We

agree that the trial court erred in giving these instructions on the facts of this case.

      To prevail, however, Randell must show that the erroneous instructions “so

infected the entire trial that the resulting conviction violates due process.” Estelle

v. McGuire, 502 U.S. 62, 72 (1991) (internal quotation marks omitted). The

California Court of Appeal held that no such infection occurred. We cannot say

that the court’s ruling was objectively unreasonable. See 28 U.S.C. § 2254(d);

Middleton v. McNeil, 541 U.S. 433, 436 (2004) (per curiam).

      The Court of Appeal concluded that, despite the two erroneous instructions,

the instructions as a whole adequately apprised the jury of Randell’s theory of self-

defense. As the court noted, the instructions clearly stated that homicide may be

lawful or unlawful; that homicide is unlawful when it occurs as a result of an

unlawful act; and that an accidental killing or killing in self-defense can be lawful.

The instructions also explained that if a defendant attempts to kill one person and

kills someone else instead, the crime the defendant commits, “if any,” is the same
                                                                          Page 3 of 4
as that committed had he killed the person originally intended. Finally, the trial

court informed the jurors that they were to read the instructions as a whole and that

the order of the instructions lacked significance. The Court of Appeal reasonably

concluded that, reading these instructions as a whole, the jury would not have

believed it was legally precluded from considering self-defense merely because

Judith Schlem was killed rather than Angel Maldonado.

       The reasonableness of the Court of Appeal’s conclusion is bolstered by the

fact that the attorneys for both sides argued the case as though self-defense was

potentially available. Randell’s attorney’s primary theory of the case was self-

defense, and he argued that theory extensively to the jury. Although the prosecutor

argued that self-defense was not a viable defense if the jury found Randell guilty of

felony murder, the prosecutor never suggested that self-defense was unavailable

simply because Randell killed an innocent bystander rather than his alleged

attacker. Randell’s due process concern—that the jury would have believed the

identity of Randell’s victim precluded self-defense—was simply never at issue

during the trial.

       On this record, a fair-minded jurist could conclude that the jury instructions

did not so infect the trial that Randell’s conviction violates due process. See

Harrington v. Richter, 131 S. Ct. 770, 786 (2011); Estelle, 502 U.S. at 72.
                                                                          Page 4 of 4
Accordingly, the district court properly denied Randell’s petition for a writ of

habeas corpus.

      AFFIRMED.
