                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              AUG 05 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

RUDOLFO BERGARA,                                 No. 12-15172

              Petitioner-Appellant,              D.C. No. 3:09-cv-05880-EMC

  v.
                                                 MEMORANDUM*
MATTHEW CATE, Warden, and
MICHAEL MARTEL,

              Respondents-Appellees.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Edward M. Chen, District Judge, Presiding

                       Argued and Submitted June 11, 2013
                            San Francisco, California

Before: O’SCANNLAIN and HURWITZ, Circuit Judges, and PIERSOL, Senior
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


        **
             The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.
      Petitioner Rudolfo Bergara appeals the district court’s denial of his petition for

a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

      Bergara was convicted in California state court on three counts of lewd and

lascivious conduct involving substantial sexual conduct with a minor under 14 years

of age, three counts of furnishing a controlled substance to a minor more than four

years younger than Bergara, and one count of attempting to dissuade a witness by

force or threat of force. The jury also found true the allegations that Bergara

personally inflicted great bodily injury on the victim for two of the lewd and

lascivious conduct counts. The evidence at trial showed that the victim was

impregnated twice by Bergara, and that both pregnancies were terminated by an

abortion not performed by Bergara. The jury was instructed that a pregnancy or

abortion may constitute great bodily injury.

      Although the California Court of Appeals reversed Bergara's judgment of

conviction on one count of furnishing a controlled substance to a minor and reduced

the determinate term sentence imposed by the trial court, the court of appeals

otherwise affirmed Bergara's judgment of conviction. Bergara petitioned the

California Supreme Court for review, which was granted pending the decision in

People v. Cross, 45 Cal. 4th 58 (2008). The Cross majority later ruled that a jury


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instruction, which stated that abortion may cause great bodily injury, should not have

been given in that case because the defendant did not perform the abortion. Id. at

66–67. Nonetheless, the Cross court found that the irrelevant instruction did not

mislead the jury because the evidence showed that the defendant did not personally

inflict the abortion, and the jury was instructed that the defendant must have

personally inflicted the great bodily injury. Id. at 67. After the Cross opinion issued

and “[i]n light of the decision” therein, the California Supreme Court dismissed

Bergara's petition for review.

      Bergara asserts that, because it was undisputed that he did not perform either

of the victim’s two abortions, the great bodily injury instructions were erroneous and

violated his due process rights because they permitted the jury to enhance his sentence

by finding the abortions were great bodily injuries, a legally incorrect theory. In

Bergara’s case, prior to defining “great bodily injury” and stating that “[a] pregnancy

or abortion may constitute[ ] great bodily injury,” the trial court instructed the jury

that it was their “duty to determine whether the defendant personally inflicted great

bodily injury on Jane Doe.” There was sufficient evidence in the record to support a

conclusion that the victim’s pregnancies constituted great bodily injury. The

California Supreme Court’s dismissal of Bergara’s petition for review, which

provided the last-reasoned state court decision, was in light of Cross, in which it was


                                          3
determined that, although giving the jury instruction was erroneous, it did not violate

the defendant’s state or federal constitutional rights. The California Supreme Court

thus concluded in Bergara’s case that the jury instructions did not violate his

constitutional rights. Under the highly deferential standard of review that is applicable

here, we cannot say the California Supreme Court’s determination that Bergara’s

constitutional rights were not violated was contrary to, or an unreasonable application

of, federal law. See 28 U.S.C. § 2254(d).

      AFFIRMED.




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