Brian Randell v. Thomas Carey ( 2014 )

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NOT FOR PUBLICATION OCT 17 2014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.