                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 03 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DAVID FRANKLIN BARGHOORN,                        No.   15-15197

              Petitioner-Appellant,              D.C. No. 2:07-cv-01996-TJH

 v.
                                                 MEMORANDUM*
KEN CLARK, Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                     Terry J. Hatter, District Judge, Presiding

                    Argued and Submitted September 15, 2016
                            San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and TUNHEIM,** Chief District
Judge.

      California state prisoner David Barghoorn appeals the district court’s denial

of his 28 USC § 2254(d) habeas corpus petition challenging his conviction in the

Superior Court of California, Amador County. At his trial, Barghoorn was

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
convicted of two counts of committing a forcible lewd act on a child under the age

of 14 years (Counts I and II of the indictment), see Cal. Pen. Code § 288(b)(1), and

one count of continuous sexual abuse of a child under the age of 14 years (Count

III of the indictment), see Cal. Pen. Code § 288.5. Counts I and II each required

proof of one act of abuse to convict, while Count III required proof of three or

more acts of abuse. See Cal. Pen. Code §§ 288(b)(1), 288.5. Barghoorn challenges

his conviction on Count III for continuous sexual abuse of a child, arguing that the

state trial court’s use of California Jury Instruction - Criminal (CALJIC) No. 17.01

violated due process because it allowed the jury to convict upon proof of only one

act of abuse. The state appellate court rejected the argument, as did the district

court. The district court granted a certificate of appealability and we have

jurisdiction under 28 U.S.C. §§ 1291 and 2253.

      Barghoorn’s due process claim is not forfeited. A federal court reviewing a

state prisoner’s conviction pursuant to a petition for a writ of habeas corpus will

not review questions of federal law decided by a state court if the state court

decision rested on an independent and adequate state law ground. La Crosse v.

Kernan, 244 F.3d 702, 704 (9th Cir. 2001). Here, the State contends that because

Barghoorn did not object to CALJIC No. 17.01 at his trial, he has forfeited his

challenge to the instruction. However, Barghoorn’s failure to object did not


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prevent the state appellate court from hearing the merits of his claim. Instead, the

appellate court heard the substantive constitutional challenge, but did so under a

more deferential standard of review. Rather than conduct de novo review, the state

appellate court asked whether the instruction violated Barghoorn’s “substantial

rights”—an inquiry that “necessarily require[d] an examination of the merits of the

claim.” People v. Jimenez, 246 Cal. App. 4th 726, 730 (2016) (quotations

omitted); see also Michigan v. Long, 463 U.S. 1032, 1038 n.4 (1983). Because the

state appellate court ruled on the merits of Barghoorn’s due process claim, there

was no independent and adequate state law ground for the decision. Barghoorn’s

claim is not forfeited.

      We also conclude that Barghoorn’s claim is not an impermissible challenge

to a state court interpretation of state law. The State contends that we cannot grant

Barghoorn relief because the gravamen of his challenge is that CALJIC No. 17.01

provided an incorrect interpretation of Cal. Pen. Code § 288.5. See Estelle v.

McGuire, 502 U.S. 62, 71–72 (1991) (“[T]he fact that [an] instruction was

allegedly incorrect under state law is not a basis for habeas relief.”). But this

mischaracterizes Barghoorn’s assertions. His argument does not claim a

misinterpretation of state law, but rather that the use of CALJIC No. 17.01 to

instruct the jury on Count III violated the federal Due Process Clause. See Medley


                                           3
v. Runnels, 506 F.3d 857, 865 (9th Cir. 2007) (“[T]he elements of a state crime are

determined by state law . . . . Nevertheless, . . . a defendant has the due process

right to insist that the state prove beyond a reasonable doubt every element of the

offense charged.”) (internal citation omitted). Whether CALJIC No. 17.01 denied

Barghoorn the constitutional right to have every element of Count III proven is a

federal question, and one that we can review on his appeal of the denial of his

habeas corpus petition.

      Nevertheless, Barghoorn’s constitutional challenge fails on the merits. “In a

criminal trial, the State must prove every element of the offense, and a jury

instruction violates due process if it fails to give effect to that requirement.”

Middleton v. McNeil, 541 U.S. 433, 437 (2004). Barghoorn contends that CALJIC

No. 17.01 violated due process by allowing the jury to convict him on Count III on

the basis of just one act. Pursuant to CALJIC No. 17.01, the trial court did instruct

that the “Defendant may be found guilty if the proof shows beyond a reasonable

doubt that he committed any one or more of the acts.” Barghoorn argues that the

instruction’s use of the disjunctive “or” gave the jury an option: convict based on

multiple acts of abuse, or convict based on just one. But in the preceding sentence

of the instruction, the court mentioned evidence “upon which a conviction in

Counts I, II and III may be based.” Thus, the phrase “any one or more of the acts”


                                            4
collectively described the acts upon which all three counts may be based; because

Counts I and II are single-act offenses, the instruction does not necessarily allow a

conviction on Count III based on just one act.

      The instruction also cannot be read in isolation, but “must be viewed in the

context of the overall charge.” Id. at 437 (quotations omitted). The charge

included another instruction given to the jury, CALJIC No. 10.42.6, which

correctly stated that three or more acts were needed to convict on Count III for

continuous sexual abuse of a child. See id. at 437–38 (rejecting a challenge to an

erroneous jury instruction where other parts of the charge correctly stated the law).

Read alongside CALJIC No. 17.01, CALJIC No. 10.42.6 makes apparent that

CALJIC No. 17.01’s phrase “one . . . of the acts” applies to Counts I and II, while

“more of the acts” applies to Count III. The most plausible way to read the charge

as a whole then is in accordance with the elements of Cal. Pen. Code § 288.5. We

cannot say that the state appellate court’s decision rejecting the federal due process

claim was objectively unreasonable or contrary to clearly established Supreme

Court law. See 28 U.S.C. § 2254(d)(1).

      AFFIRMED




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