Rudolfo Bergara v. MATTHEW CATE, Warden, and MICHAEL MARTEL

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUDOLFO BERGARA,
Petitioner-Appellant,
v.
MATTHEW CATE, Warden, and
MICHAEL MARTEL,
Respondents-Appellees.
No. 12-15172
D.C. No. 3:09-cv-05880-EMC
MEMORANDUM*
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. **
FILED
AUG 05 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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
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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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