                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 20 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

CIRIACO VALENCIA,                                 No. 09-16015

              Petitioner - Appellant,             D.C. No. 4:05-cv-04423-PJH

  v.
                                                  MEMORANDUM *
D.L. RUNNELS, Warden,

              Respondent - Appellee.




                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                      Argued and Submitted January 14, 2013
                            San Francisco, California

Before: TASHIMA, GRABER, and FISHER, Circuit Judges.

       Petitioner Ciriaco Valencia appeals the district court’s denial of habeas

corpus. Reviewing de novo, Jones v. Ryan, 691 F.3d 1093, 1100 (9th Cir. 2012),

we affirm.




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Even assuming that the jury instruction was erroneous, any error was

harmless under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). See Hedgpeth v.

Pulido, 555 U.S. 57, 62 (2008) (per curiam) (holding that the Brecht standard

applies to instructional error). We are convinced that the error, if any, did not have

a "substantial and injurious effect or influence in determining the jury’s verdict."

Brecht, 507 U.S. at 623 (internal quotation marks omitted). Uncontradicted

evidence demonstrated that extensive bruising on the victim’s thighs occurred pre-

mortem. Accordingly, the jury almost certainly found that direct acts related to the

sexual assaults occurred pre-mortem. Moreover, there is no likelihood that the

error was prejudicial, because the error permitted an impermissible conviction only

under a sequence of events—formation of intent to sexually assault occurring both

after the physical assaults and before the death of the victim—that was not

supported by the evidence.

      Finally, the jury was instructed that it could find the rape and sodomy

special circumstances true only if it found that the murder was committed "while

the defendant was engaged in the commission or attempted commission" of a rape

or sodomy. (Emphasis added.) Because the jury found these special circumstances

true, it had to have found that direct acts related to the sexual assaults—the

physical assault that resulted in her death—occurred pre-mortem.

      AFFIRMED.

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