                                                                           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                             NOT FOR PUBLICATION                            JAN 04 2010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



 RICHARD D. BAMRICK,                              No. 06-55080

               Petitioner - Appellant,            D.C. No. CV-03-02032-CAS

   v.
                                                  MEMORANDUM *
 SILVA GARCIA,

               Respondent - Appellee.



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

                           Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        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.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

SZ/Research
       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 (1993).

       Panel does not grant en banc review.

       AFFIRMED.




SZ/Research                                 2                                       06-55080
