Ciriaco Valencia v. D.L. RUNNELS, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CIRIACO VALENCIA,
Petitioner - Appellant,
v.
D.L. RUNNELS, Warden,
Respondent - Appellee.
No. 09-16015
D.C. No. 4:05-cv-04423-PJH
MEMORANDUM*
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.
FILED
MAR 20 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

2
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.

-- 2 of 2 --