                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 12 2013

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




                            FOR THE NINTH CIRCUIT



CARLOS HERNANDEZ,                                No. 12-55387

              Petitioner - Appellant,            D.C. No. 3:10-cv-02360-WQH-
                                                 BLM
  v.

MATTHEW CATE, Secretary CDCR;                    MEMORANDUM *
ATTORNEY GENERAL FOR THE
STATE OF CALIFORNIA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                       Argued and Submitted March 6, 2013
                              Pasadena, California

Before: THOMAS and HURWITZ, Circuit Judges, and BEISTLINE, Chief
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Ralph R. Beistline, Chief District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
      California state prisoner Carlos Hernandez appeals the district court’s denial of

his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253, and we affirm.


      1. Hernandez argues that the California Court of Appeal unreasonably held that

he was not entitled to a jury instruction on the effect of a reasonable but mistaken

belief that the victim had consented to sexual conduct. See People v. Mayberry, 542

P.2d 1337, 1345 (Cal. 1975). Applying the deferential review required in habeas

corpus proceedings, we cannot conclude that the decision by the Court of Appeal that

the requested instruction was not supported by the evidence was “contrary to, or

involved an unreasonable application of, clearly established Federal law,” or “based

on an unreasonable determination of the facts.” 28 U.S.C. §§ 2254(d)(1), (2).




      2.   The jury found that Hernandez committed an offense “during the

commission of a burglary . . . with intent to commit [a sex crime].” Cal. Penal Code

§ 667.61(d)(4). The jury was instructed that it must decide “whether for each crime

the People have proved the additional allegation that the defendant committed the

crime during the commission of a burglary, with the intent to commit Sodomy by Use

of Force and/or Forcible Rape.” Hernandez argues that the instruction violated his



                                          2
due process rights because it did not require the jury to agree unanimously which sex

offense he intended to commit when he illegally entered the victim’s home.

      However, “[s]ubmitting a multi-theory crime to the jury without requiring

unanimity on any one predicate theory is not a constitutional violation.” Evanchyk v.

Stewart, 340 F.3d 933, 937 n.1 (9th Cir. 2003) (citing Schad v. Arizona, 501 U.S. 624,

644-45 (1991)). The underlying crimes that trigger the allegation here are not “so

disparate as to exemplify two inherently separate offenses.” Schad, 501 U.S. at 643.

      AFFIRMED.




                                          3
