Jennifer Henderson v. Deborah Johnson

I concur in the affirmance of the denial of Henderson’s petition, as the trial court’s instructional error was harmless in light of the overwhelming evidence showing Henderson’s involvement in the victims’ deaths.

*201However, I disagree with the majority’s determination that CALCRIM No. 376 violates due process under clearly established law. A jury instruction error rises to the level of a constitutional violation if “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d…