Rudolfo Bergara v. Matthew Cate

MEMORANDUM

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…