Eduardo Linares v. J. TIM OCHOA, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO LINARES,
Petitioner - Appellant,
v.
J. TIM OCHOA, Warden,
Respondent - Appellee.
No. 11-55814
D.C. No. 2:09-cv-02128-DDP-
JEM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted January 5, 2015
Pasadena, California
Before: KOZINSKI, W. FLETCHER and OWENS, Circuit Judges.
1. The jury heard evidence that Linares drove Ricardo to the site of the drug
deal for $400, with the knowledge that Ricardo was carrying a gun and planned on
purchasing $28,000 worth of cocaine. The jury also heard that Linares had
participated in drug deals before and understood that his history as an informant
FILED
JAN 20 2015
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.

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could heighten the dangers involved. Viewing the evidence in the light most
favorable to the prosecution, see Jackson v. Virginia, 443 U.S. 307, 319 (1979), the
California Court of Appeal reasonably found that there was sufficient evidence for
a jury to convict Linares of second degree implied malice murder.
2. Under California law, a trial court must “on its own initiative [] identify
and describe for the jury any target offense allegedly aided and abetted by the
defendant” when “the prosecution relies on the ‘natural and probable
consequences’ doctrine to hold a defendant liable as an aider and abettor.” People
v. Prettyman, 926 P.2d 1013, 1025 (Cal. 1996). Linares argues that his due
process rights were violated by the state trial court’s failure to give such an
instruction. However, the district court did not err in rejecting this claim because
the jury was properly instructed as to the elements of second degree implied malice
murder, and there is sufficient evidence to support a conviction under the theory
that Linares was a direct perpetrator. Thus, it was reasonable for the California
Court of Appeal to conclude that the trial court’s failure to instruct the jury under
an alternative theory was harmless.
3. Linares contends that his due process rights were also violated when the
trial court initially gave the wrong jury instruction on malice. The California Court

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of Appeal reasonably concluded that this error was harmless because the trial court
provided the correct instruction, CALJIC No. 8.11, while the jury was still
deliberating Linares’s guilt of second degree murder. Moreover, the jury had been
instructed at the outset on the elements of second degree murder with CALJIC No.
8.31, which included a definition of malice that paralleled the definition in CALJIC
No. 8.11. The district court therefore did not err in rejecting this claim.
4. The district court properly rejected Linares’s argument that the combined
effect of the alleged errors in this case necessitates reversal. The California Court
of Appeal reasonably concluded that these alleged errors—none of which were
prejudicial—did not collectively render Linares’s trial fundamentally unfair. See
Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007).
AFFIRMED.

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