Bamrick v. Garcia

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NOT FOR PUBLICATION JAN 04 2010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