Rodgers

MEMORANDUM *

Petitioner Morris Rodgers (“Rodgers”) appeals the denial of his § 2254 habeas petition, arguing that a conceded jury instruction error had a substantial and injurious effect on the jury’s verdict in his case. Reciting the facts only as necessary, we affirm.

Rodgers was tried and convicted of aiding and abetting the murder of Kim Gaines and sentenced to twenty-two years to life in prison. The sentence was later reduced to twenty-one years to life. The model aiding and abetting instruction used at trial was later held unconstitutional by the California Supreme Court because it omitted the element that the aider and abettor must share the specific intent of the perpetrator. See People v. Beeman, 35 Cal.3d 547 , 199 Cal.Rptr. 60 , 674 P.2d 1318 (1984); People v. Caldwell, 36 Cal.3d 210 , 203 Cal.Rptr. 433 , 681 P.2d 274 (1984). Applying Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), however, the California Court of Appeal determined the error was harmless.

Based on the record before us, we cannot conclude the instructional error “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v. Abrahamson,…