Carlos HERNANDEZ, Petitioner-Appellant, v. Matthew CATE, Secretary CDCR; Attorney General for the State of California, Respondents-Appellees, 511 F. App'x 618

MEMORANDUM 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 2258, 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, 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337, 1345 (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].” CahPenal 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 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, “[sjubmitting 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, 111 S.Ct. 2491, 115 L.Ed.2d 555 (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, 111 S.Ct. 2491. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.