Rhodes

MEMORANDUM **

California state prisoner Glenn David Rhodes appeals from the district court’s denial of his pre-AEDPA § 2554 habeas petition challenging his convictions for 6 counts of lewd and lascivious acts with a child under the age of 14 years. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm.

Rhodes first contends that his Sixth and Fourteenth Amendment rights to trial by jury were violated because his conviction on count 6 of the amended information was predicated “on a factual basis not presented to the jury.” Essentially, Rhodes argues that count 2 of the amended information, and count 6 twice charged the same acts for the same crime. We disagree.

The Sixth Amendment requires that a jury find a defendant guilty of all elements of the crime with which he is charged, see United States v. Gaudin, 515 U.S. 506, 511 , 115 S.Ct. 2310 , 132 L.Ed.2d 444 (1995), and the jury’s findings must be based upon the evidence submitted at trial, Jeffries v. Wood, 114 F.3d 1484, 1490 (9th Cir.1997). Because the record shows that sufficient evidence was presented at trial to allow the jury to find Rhodes guilty of each element necessary for conviction on two separate…