United States District Court, Northern District of California
January 29, 2003
EWALLOR NGAAGE, PETITIONER,
SYLVIA GARCIA, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Martin J. Jenkins, United States District Judge.
ORDER DENYING PETITION FOR A
WRIT OF HABEAS CORPUS
Petitioner, a California prisoner, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. After a review of the petition, the court ordered respondent to show cause why the petition should not be granted on the basis of petitioner's claim of ineffective assistance of counsel. Respondent filed an answer accompanied by a memorandum and exhibits contending that the petition should be denied. Petitioner filed a traverse.
In 1996, petitioner was charged in Santa Clara County Superior Court with rape and fifteen counts of forcible lewd and lascivious conduct with a minor under age 14. The victim was 16 years old when she testified at petitioner's trial. She testified regarding several instances of sexual abuse by petitioner, who is her uncle, when she was between the ages of 6 and 14. On cross-examination, it was revealed that the victim did not remember many of the details surrounding these incidents and that there were numerous inconsistencies among the accounts she had given to the investigating officers, at the preliminary hearing, and at trial. Petitioner testified in his defense, denying any sexual contact with the victim except for one consensual incident when she was 14. The jury convicted petitioner of rape and 11 counts of forcible lewd and lascivious conduct. The trial court sentenced petitioner to 72 years in state prison. The California Court of Appeal denied petitioner's direct appeal, and the Supreme Court of California summarily denied relief.
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). In evaluating whether there has been a violation of § 2254(d)(1), the court should first review the state court decision for error de novo and then determine whether the decision was contrary to or an unreasonable application of controlling law. See Van Tran v. Lindsey, 212 F.3d 1143, 1155, 1159 (9th Cir. 2000). Habeas relief is warranted, however, only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
B. Legal Claims
Petitioner claims that he received ineffective assistance of counsel because his attorney failed to object to the prosecutor's argument concerning Childhood Sexual Abuse Accommodation Syndrome ("CSAAS"). A violation of the Sixth Amendment right to counsel based on trial counsel's ineffectiveness requires a showing that counsel's performance was both deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 686-93 (1984). In assessing counsel's performance, the relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Prejudice exists if there is a reasonable probability, in other words a probability sufficient to undermine confidence in the trial's outcome, that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694.
Police Detective Carl Lewis testified at trial as a prosecution expert witness on the subject of CSAAS. Lewis testified that CSAAS is an aid to help ascertain a child's report of sexual abuse. He explained that CSAAS involves five behavior categories in child victims of sexual abuse: secrecy (children are susceptible to the concept of secrets and can be influenced to keep them); helplessness (children feel subordinate due to size, strength, and lack of sophistication); entrapment and accommodation (children may cope with abuse by disassociating via substance abuse, acting out, or incorrigible behavior); delayed or conflicting disclosures (children will reveal abuse in bits and pieces that lack details); and retraction (children may retract disclosure after experiencing the loss of normalcy in their lives). Lewis conceded on cross-examination that CSAAS is merely an aid and not an indicator that abuse occurred, and that these behavior categories are as consistent with a child who has not been abused as they are with an abuse history.
Under California law, CSAAS evidence is admissible "solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." People v. Bowker, 203 Cal.App.3d 385, 394 (1988). Bowker explained the limits on admitting CSAAS evidence as follows:
It is one thing to say that child abuse victims often
exhibit a certain characteristic or that a particular
behavior is not inconsistent with a child having been
molested. It is quite another to conclude that where a
child meets certain criteria, we can predict with a
reasonable degree of certainty that he or she has been
abused. The former may be appropriate in some
circumstances; the latter clearly is not.
Id. at 393. Accordingly, when CSAAS evidence is admitted, the jury must be instructed, as it was in this case on two occasions, that: (1) the evidence should not be used to determine whether the victim's sexual abuse claim is true; (2) CSAAS approaches the issue for a perspective opposite to that of the jury; and (3) CSAAS assumes abuse has occurred and seeks to describe and explain common reactions of children to the experience. Id. at 394.
In closing argument, the prosecutor made the following remarks:
"Now, I told you at the outset that [the victim]
would have difficulty with dates. She would have
difficulty with exact details on a lot of things. You
heard during the course of this trial why. You heard
because this was not a pleasant experience —
this wasn't like a wedding that you would want to
remember so every detail you tried to keep in your
memory, hoping to never forget it. This is some in so
horrible that as it was going on, she even at that
moment was attempting to remove herself from it and to
forget. She said she didn't want to look at him; she
knew what he was doing was wrong.
"You heard Detective Carl Lewis tell you that is
very common. It's very common that the children will
repress these things and not to remember them. It's
very common that they will delay in their reporting of
these events. And that is exactly what happened with
[the victim]. But it doesn't change the fact that from
the time that she was 6 years old until she was 14,
that the defendant sexually abused her. And this case
comes down to, I'm sure you all know, who am I going
to believe. Am I going to believe [the victim], who
sat up here for a day, day and a half, undergoing
examination by me, cross-examination, further
examination, more cross-examination. Doing the best
she could to look at us as she testified, look at
you, trying to remember the details and answer the
questions. She didn't run from the questions, she
didn't hide from it; she did her best to answer them
for you, giving you as much detail as she could."
Petitioner contends that it was unreasonable for defense counsel not to object to the underlined remarks above. According to petitioner, the remarks urged the jury, in violation of Bowker, to infer from the victim's trouble remembering details of the abuse and the inconsistencies in her testimony that the abuse had in fact occurred. In the context of the entire prosecution argument, however, defense could reasonably understand the prosecutor to have simply been explaining to the jury why the victim, despite the problems in her testimony, was still credible. While Bowker does prohibit arguing that CSAAS demonstrates the existence of abuse, California law does not prohibit the use of CSAAS evidence to rehabilitate a victim who might otherwise lack credibility. As explained by the California Court of Appeal, the necessity for CSAAS evidence arises when the victim's credibility is attacked by a defendant's suggestion that the victim's conduct after the incident, e.g. a delay in reporting, is inconsistent with his or her testimony claiming molestation. People v. Gilbert, 5 Cal.App.4th 1372, 1383 (1992). The victim's credibility was the crux of the case against petitioner, and the central issue was who the jury would believe. The defense focused on the inconsistencies, lack of detail and delays in the victim's testimony, and consequently, the prosecutor focused on rehabilitating her in closing argument. When the prosecutor made the remarks petitioner challenges, he was in the midst of explaining to the jury why the victim had difficulty remembering the details of what occurred and the importance of her credibility to the case. In this context, defense counsel could reasonably understand the prosecutor to be saying, "because of CSAAS, you should discount the problems in the victim's testimony," not "because of CSAAS, you should find that the abuse occurred." While the latter would be prohibited under California law, the former is not. Accordingly, defense counsel could reasonably decide not to object to the prosecutor's remarks during closing argument.
Even if defense counsel's failure to object were unreasonable, the record establishes that it did not prejudice petitioner under Strickland. The jury was explicitly instructed twice by the trial judge on the proper use and limits on the CSAAS evidence under California law, including that it could not be used to establish the truth of the allegations that the victim had been sexually abused.
[A]rguments of counsel generally carry less weight
with a jury than do instructions from the court. The
former are not evidence, and are likely viewed as the
statements of advocates; the latter, we have often
recognized, are viewed as definitive and binding
statements of the law. Arguments of counsel which
misstate the law are subject to objection and to
correction by the court. This is not to say that
prosecutorial misrepresentations may never have a
decisive effect on the jury, but only that they are
not to be judged as having the same force as an
instruction from the court.
Boyde v. California, 494 U.S. 370
, 384-85 (1989) (citations omitted). Te trial court instructed the jury on the proper use of the CSAAS evidence once just prior to the introduction of the evidence, and again in the final instructions to the jury just prior to closing arguments. For the reasons explained in Boyde, these instructions carried more weight with the jury than the prosecutor's remarks. As a consequence, there is not a reasonable likelihood that the jury, having heard the proper instructions, would have followed any improper suggestion made by the prosecutor. Because the impact of the prosecutor's remarks was so diminished by the court's instructions, even if the prosecutor's remarks were improper under California law, the record establishes that there is not a reasonable likelihood that the outcome of the trial would have been different had defense counsel had objected to the remarks.
Defense counsel's failure to object to the prosecutor's remarks about the CSAAS evidence was neither deficient nor prejudicial under Strickland. Accordingly, petitioner's claim for habeas relief on this basis fails.
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. All pending motions are terminated and the clerk shall close the file.
IT IS ORDERED.