NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIAN K. RANDELL, Petitioner - Appellant,

v. MARION SPEARMAN, Warden, ** Respondent - Appellee. No. 13-15311 D.C. No. 4:06-cv-06400-PJH

MEMORANDUM *

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, 

# FILED

OCT 17 2014 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* 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 atro cious crime” against him, and (2) the instruction stating that a defendant ma y 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 thes e instructions on the facts of this case. To prevail, however, Randell must show that the erroneous instructions “so infected the entire trial that the resu lting 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, de spite the two erroneous instructions, the instructions as a whole adequately appr ised the jury of Randell’s theory of selfdefense. As the court noted, the instruc tions 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 killi ng 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 samePage 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 signi ficance. The Court of Appeal reasonably concluded that, reading these instructions as a whole, the jury would not have believed it was legally precluded from cons idering 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 selfdefense, and he argued that theory extens ively 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 suggest ed that self-defense was unavailable simply because Randell killed an innocen t bystander rather than his alleged attacker. Randell’s due process concern— that the jury would have believed the identity of Randell’s victim precluded sel f-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.