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DARN v. KNOWLES

United States District Court, Northern District of California


May 13, 2003

FLOYD DARN, PETITIONER,
v.
MIKE KNOWLES, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Susan Illston, United States District Judge

JUDGMENT

The petition for writ of habeas corpus has been denied. Accordingly, judgment is entered in favor of respondent and against petitioner Floyd Darn.

IT IS SO ORDERED AND ADJUDGED.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This matter is now before the court for consideration of the merits of Floyd Darn's pro se petition for writ of habeas corpus concerning his 1999 rape conviction. For the reasons discussed below, the petition will be denied.

BACKGROUND

On October 8, 1999, a jury convicted Floyd Darn of rape (Cal. Pen. Code § 261). In a separate court trial, the trial court found that Darn suffered two prior serious felony convictions. On May 12, 2000, the trial court sentenced Darn to serve 25 years to life in prison.

In a written opinion the California Court of Appeal affirmed the conviction but remanded for re-sentencing to impose a mandatory term of 35 years to life in prison pursuant to the provisions of California Penal Code § 667(a)(1). The California Supreme Court denied Darn's petition for review.

Darn then filed this action, seeking a federal writ of habeas corpus. His habeas petition raises four claims: (1) that the trial court's refusal to allow impeachment of a witness based upon a false statement in prior testimony violated Darn's Fifth and Sixth Amendment rights to present a defense and to confront and cross examine witnesses, as well as the Due Process Clause of the Fourteenth Amendment; (2) that the prosecutor made an improper comment during closing argument concerning Darn's failure to testify which violated the rule in Griffin v. California and Darn's rights under the Fifth Amendment of the U.S. Constitution; (3) that the trial court violated Darn's right to due process under the Fourteenth Amendment when it admitted evidence of prior acts of sexual assault in reliance on California Evidence Code § 1108, for the purposes of showing propensity; and (4) that the trial court violated Darn's right to due process when it gave certain jury instructions on the admission and weight of the prior acts evidence. See Petitioner's Writ of Habeas Corpus, p. 7-8.

A. Current Incident

This case involves an incident of sexual assault by Darn. Below is a summary of the facts as stated in the California Court of Appeal opinion.

In 1989, Darn married Janet Bell. At the time, Bell had a four year-old daughter, who was referred to at trial as D.H., and a three year-old son named Christopher. Darn and Bell had two additional children together. While she was growing up, D.H. had a close relationship with Darn, who she considered to be her father. However, as D.H. grew older, she distanced herself from Darn because she thought he was overly protective. D.H. did not have romantic feelings about Darn.
Darn and Bell divorced in 1997. In May 1998, Bell allowed Darn to live in her home temporarily while he looked for work. Darn slept on the living room couch. During this period, Bell and Darn had sexual relations on two occasions. However, Bell told Darn she did not intend to reconcile with him and that she was seeing another man.
On September 3, 1998, Bell twice rejected Darn's sexual advances and Darn became angry. Then, at around 11:00 or 11:30 p.m., Bell went to work and Darn stayed at the house with the children. Darn played cards with D.H. and Christopher. During that time he consumed about one-half a bottle of gin. At around 2:00 a.m., D.H. went to bed. Her sister was asleep in another bed in the same room. [D.H. was fourteen years old at the time.]
D.H. fell asleep but awoke when she felt Darn lying on her back. Darn put his hand over D.H.'s mouth and said, "Don't say nothing." D.H. struggled to get up but Darn forced her down with the weight of his body. He lifted her skirt, and vaginally raped her. The intercourse was painful and lasted two or three minutes. Then, D.H. heard the sound of keys at the front door. Darn told D.H., "Don't say nothing or I'll kill you" and then ran to Bell's bedroom.
Bell only worked a few hours of her shift on September 4 because she was not feeling well. When she arrived at home and opened the front door, she heard movement that sounded like footsteps. Bell went to D.H.'s room and found her daughter sitting up in bed crying. Her skirt was up around her shoulders. Bell went to her own bedroom and found Darn lying on her bed under D.H.'s bed cover. Bell removed the cover and found Darn was naked. Bell hit Darn and asked what he had done to D.H. Darn pushed Bell and stated: "Hold on Janet . . . it's your fault, if you had a man — if you had have had sex with me this wouldn't have happened."
Bell gathered her children and took them to her car. Darn followed asking Bell to listen to him and repeating that it was not his fault. Bell drove her children to her brother's house. On the way there, D.H. told Bell that her "boody" hurt. A police officer came to Bell's brother's house but D.H. was too upset to give him any information. The officer then went to Bell's house. Darn was not there but came back to the house approximately 25 minutes later. Darn told the officer, "I'm the guy you're looking for. I am not running.
Early in the morning of September 4, Kevin Binder, a physician's assistant at Highland Hospital, performed a sexual assault examination on D.H. D.H. reported that Darn assaulted her and that he threatened to kill her. Binder observed a vaginal tear in the posterior fourchette, an injury that was consistent with nonconsensual sex. D.H. did not complain of vaginal pain during the examination.
While Darn was in jail, he sent letters to D.H. and to Bell apologizing for what had happened. In his letter to Bell, Darn wrote: "I can't begin to explain what went on in my head that night. It really shameful . . . for me. I should have used my head instead of let my weakness."
During the period that Darn was in custody at Santa Rita, a proximately 50 collect calls were made from the jail to Bell's house. Bell testified that she had accepted two of those calls from Darn. D.H. testified that she had one telephone conversation with Darn while he was in jail. Darn told her that she should testify that she "wanted it" and that Darn "didn't do nothing." D.H. denied accepting any other collect calls from Darn, but testified that she did accept calls from a neighbor friend named Demellow, who was also in custody at Santa Rita.
Darn was charged with rape (Cal. Pen. Code § 261) and with having three prior serious felony convictions (two for first degree burglary and one for robbery) within the meaning of California Penal Code § 667, subdivisions (a) and (e)(2), and California Penal Code § 1170.12, subdivision (c)(2)(A).
Cal. Ct. App. Opinion, p. 1-4.

The defense theory was that Darn and D.H. had engaged in consensual sex, fell asleep in Bell's living room, and awoke when they heard Bell at the front door. Defense counsel conceded during her opening statement that sexual conduct had occurred but maintained that it was not forcible.

B. Prior Incidents

The prosecution introduced evidence that Darn committed a sexual assault on Michelle Hardy in 1992. This evidence was introduced under California Evidence Code §§ 1101 and 1108. Defense counsel objected to the admission of such evidence on the grounds that it was not sufficiently similar to the charged offense, that it was not a sexual assault within the meaning of California Evidence Code § 1108, and that it was more prejudicial than probative. Reporter's Transcript ("RT") 9/27/99 24-27; RT 9/30/99 2-6, 10-13. The trial court admitted the evidence over the objection. RT 9/30/99 13-15.

The prosecution presented the following evidence at trial. Michelle Hardy was friends with Janet Bell, and lived in the same apartment complex as Bell and Darn. Hardy testified that, on July 6, 1992, around midnight, Darn broke into her apartment through a kitchen window, sat on Hardy's bed and asked her to "hold him." Darn pushed Hardy down on the bed and began kissing and fondling her breasts. He placed his hands between her legs. Hardy cried and told Darn to stop, but he placed his hand over her mouth, told her to shut up, and threatened to hit her. Darn only stopped after Hardy's daughter began crying outside her bedroom door. RT 83, 275-293, 307-308, 313, 321.

Hardy told Bell about the incident shortly after it happened. Darn was present at the time and did not deny Hardy's accusation. Instead, he told Bell it was her fault because she had "stopped caring" for him. RT 83-89, 124-125, 294-303, 314-315.

Before the presentation of the evidence, and again at the close of evidence the trial court instructed the jury pursuant to the 1999 revised version of CALJIC No. 2.50.01. RT 272-274, 463-466. Specifically, the court instructed the jury that (RT 273, 465):

"If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had this disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused. However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide."
JURISDICTION AND VENUE

This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Alameda County, California, which is located within this judicial district. 28 U.S.C. § 2241(d).

STANDARD OF REVIEW

This court may entertain a petition for 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). The petition may not be granted with respect to any claim that was adjudicated 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); see Williams (Terry) v. Taylor, 529 U.S. 362 (2000).

EXHAUSTION

Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c)). The parties do not dispute that state court remedies were exhausted for the claims in the petition.

DISCUSSION

A. Exclusion of Evidence Regarding Victim's Prior Sexual Conduct*fn1

1. State Court Proceedings

Darn requested the admission of evidence regarding the D.H.'s past sexual history — i.e., evidence that D.H. had an abortion — to impeach the statements that she had given to the police, at the preliminary hearing, and at trial. At the preliminary hearing, D.H. was asked on cross-examination if she saw Darn ejaculate during the incident. D.H. replied that she did not. When defense counsel asked how she knew, D.H. responded that people in her sex education class told her what would happen. Defense counsel confronted her with her earlier statement to police that she did not know if Darn had an orgasm, and asked her what had changed her mind. D.H. responded that she "thought about what the people told me when I went to that class." Defense counsel asked if she had ever seen a male orgasm, and she replied that she had not. Defense counsel then asked D.H. if Darn had wore a condom, to which she responded, "I don't think so, no." Cal. Ct. App. Opinion, p. 4.

Before trial, the trial court granted the prosecutor's motion to exclude evidence of D.H.'s past sexual experience, including evidence of an alleged abortion. The trial court granted this motion "with the proviso" that if D.H. made any statement at trial opening the door on the subject, the court would reconsider the decision. RT 9/27/99 18-20; Trial RT 21-25, 27. The trial court explained that, even assuming D.H. had an abortion, evidence of that fact did not prove she lied at the preliminary hearing because she could have had prior sexual experiences but not have visually observed a male orgasm.

Following the direct examination, the trial court revisited the issue of the scope of cross examination and the amount to which D.H.'s prior sexual experiences would be admitted. The trial court held that defense counsel could cross-examine the D.H. on prior inconsistent statements, but could not "explore unfettered" the subject of her personal sexual history that might account for her knowledge or lack of it. RT 227-230. The trial court refused to allow Darn to offer "impeachment evidence that D.H. had previously had an abortion, which went to the issue of her credibility as to her knowledge and its source." Petitioner's Brief p. 8. Darn urges that this exclusion of evidence violated his right to due process; he contends that evidence that D.H. had a prior sexual history was relevant to show the inconsistencies in D.H.'s testimony, thus affecting D.H.'s credibility. Petitioner's Brief p. 7-8.

The California Court of Appeal rejected Darn's evidentiary error claim, agreeing with the trial court that the evidence was more prejudicial than probative. Cal. Ct. App. Opinion, p. 7-8. The court of appeal noted that D.H.'s statements were not inconsistent. D.H. did not claim naivete at trial or at the preliminary hearing. Id. at 7. Therefore, "even if evidence of her sexual history tended to show she was not naive, such evidence would not have impeached her credibility." Id. Further, the appellate court agreed with the trial court's analysis "that evidence that D.H. had an abortion would not establish that she had substantial knowledge of the male orgasm or even that she had significant past sexual encounters, as Darn contends." Id. at 7-8. Lastly, the appellate court found that the evidence was not sufficiently probative, and that there was a greater likelihood that the jury would have drawn negative conclusions about D.H.'s character. "Clearly [the evidence] was more prejudicial than probative." Id. at 8.

2. Analysis of Federal Claim

The Due Process Clause of the Fourteenth Amendment does not guarantee the right to introduce all relevant evidence. See Montana v. Egelhoff, 518 U.S. 37, 42 (1996). A defendant does not have an unfettered right to offer evidence that is incompetent, privileged or otherwise inadmissible under standard rules of evidence. See id. The exclusion of evidence does not violate the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 43 (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)) (internal quotations omitted).

The Supreme Court "has recognized that a state has a legitimate interest in protecting rape victims against unwarranted invasions of privacy and harassment regarding their sexual conduct. Wood v. Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992) (citing Michael v. Lucas, 500 U.S. 145 (1991)).

When deciding whether the exclusion of evidence violates the due process right to a fair trial and the Sixth Amendment right to present a defense, the court balances the following five factors: (1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense. Drayden v. White, 232 F.3d 704, 711 (9th Cir. 2000).

In this case, the analysis begins by noting that the California courts employed California Evidence Code § 352, a rather commonplace kind of evidentiary rule allowing the exclusion of evidence where its probative value is substantially outweighed by some other factor. Under § 352, evidence can be excluded when its probative value is outweighed by the probability that its admission will necessitate undue consumption of time, be unduly prejudicial, confuse the issues or mislead the jury. The rule itself does not offend due process. And the application of the rule to exclude the evidence in Darn's case did not result in a due process violation. The probative value of the excluded evidence was minimal because evidence of D.H.'s prior sexual history had nothing to do with Darn's guilt and had very little relevance to D.H.'s truthfulness about whether she saw Darn ejaculate or wear a condom. D.H.'s prior sexual history was not an issue to be evaluated by the trier of fact. The evidence that the 14 year-old victim earlier had an abortion might taint her reputation but proved nothing of relevance in this case. D.H. and Darn agreed that sexual relations took place between them. The admission of D.H.'s sexual history evidence does not relate to an element of the offense charged, nor is it the sole evidence at issue. After consideration of these factors identified in Drayden, this Court is firmly convinced that the trial court did not err by excluding evidence of D.H.'s prior abortion. The exclusion of this evidence did not violate Darn's right to due process. The state court's rejection of the due process claim was not an unreasonable application of, or contrary to, clearly established federal law.

B. Prosecutor's Statements During Closing Argument

Darn contends that during closing argument, the prosecutor's statement that "no one would come in here and say that this was not non-consensual sex," amounted to improper comment on Darn's decision not to testify in violation of Griffin v. California, 380 U.S. 609 (1965). RT 547.

The state appellate court concluded that the prosecutor's argument, viewed in context, did not amount to an impermissible comment on Darn's failure to testify. The comment in question was made while the prosecutor was discussing the medical evidence. The prosecution argued that medical testimony from the physician's assistant, Kevin Binder, who examined D.H., established that the sex between Darn and D.H. was non-consensual. The prosecutor then pointed out that:

"The defense has not brought in anyone to dispute it." The prosecutor noted that counsel had suggested some studies might support the defense's position and asked "Why didn't she bring in one of those people to come in here and tell you that this was non nonconsensual sex? Because medical testimony doesn't lie." After summarizing Binder's testimony that D.H.'s injuries were consistent with non-consensual sex, the prosecutor stated: "You do not have one witness disputing that. Could have brought in anybody. I mean I don't know if these studies actually exist. . . . But if it supported her cause, there's the witness stand. . . . but you wont meet one person. You want to know why? Because no one would come in here and say this was not non-consensual sex."
Cal. Ct. App. Opinion, p. 9-10 (emphasis added).

Where a prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant's silence, or to treat the defendant's silence as substantive evidence of guilt, the defendant's privilege against compulsory self-incrimination is violated. See Griffin v. California, 380 U.S. 609, 615 (1965). While it is proper for the prosecution to address the defense arguments, a comment is impermissible if it is manifestly intended to call attention to the defendant's failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify. See Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987) (citing United States v. Bagley, 772 F.2d 482, 494 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986)). Such commentary by the prosecutor warrants the issuance of the great writ only if "(1) the commentary is extensive; (2) an inference of guilt from silence is stressed to the jury as a basis for the conviction; and (3) where there is evidence that could have supported acquittal." Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993) (citation omitted), cert. denied, 510 U.S. 1191 (1994); see, e.g., United States v. Mende, 43 F.3d 1298, 1301 (9th Cir. 1995) (prosecutor's comments not improper where they simply reminded jury that defense had failed to present certain evidence); Guam v. Ojeda, 758 F.2d 403, 407 (9th Cir. 1985) (courts will not reverse when prosecutorial comment is single, isolated incident, does not stress inference of guilt from silence and is followed by curative instructions).

When the sentence in question in the closing argument is viewed in context, it is clear that the prosecutor was commenting on the defense failure to call an expert witness to refute the prosecution's medical testimony, and was not referring to Darn's failure to testify or using his silence as evidence of guilt. The prosecutor's argument about the failure of the defense to call a witness to refute Binder's medical testimony cannot fairly or reasonably be interpreted as Griffin error. The comment in question was quite brief: it was only a single sentence. The comment did not ask the jury to infer Darn's guilt from Darn's silence. And there was not enough evidence to support an acquittal. Darn argues that, since only he and D.H. were present during the sex act, the comment inevitably referred to his failure to testify. But he ignores the context of the comment, and the context is key: the comment referred to the medical evidence. The state court's rejection of the claim was not contrary to or an unreasonable application of clearly established federal law. Moreover, when the defense objected, the trial court promptly reminded the jury that Darn had a right not to testify. The court also included in the jury charge CALJIC 2.60, which explains that a defendant has a right not to testify and that the jury cannot draw inferences from it. There was no Griffin error here.

C. Prior Acts Admitted At Trial Under California Evidence Code § 1108

Darn next asserts that the trial court erred in admitting evidence of a prior sexual assault by him to prove his propensity to commit sexual offenses. The evidence was admitted under California Evidence Code § 1108, a statute Darn contends violated his rights under the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.

1. Darn's previous act admitted into evidence

Michelle Hardy was friends with Janet Bell, and lived in the same apartment complex as Bell and Darn. Hardy testified that, on July 6, 1992, around midnight, Darn broke into her apartment through a kitchen window and sexually assaulted her. Bell testified that, when Hardy told her about the incident shortly after it happened, Darn did not deny it but instead told Bell it was her fault because she had "stopped caring" for him.

Darn objected in the trial court to admission of the prior sexual assault under Evidence Code § 1108, but did not challenge the statute or instructions governing the use of such evidence on federal constitutional grounds. Darn contended on appeal that § 1108 violated due process because it impermissibly lowered the prosecution's burden of proof. The California Court of Appeal rejected this argument for two reasons. First, procedurally, Darn waived this claim of error by failing to raise it in the trial court. People v. McPeters, 2 Cal.4th 1148, 1188 (1992); Cal. Evid. Code § 353. Second, with regard to the merits of Darn's claim, the California Supreme Court had expressly found that § 1108 did not violate due process. People v. Falsetta, 21 Cal.4th 903, 913-922 (1999).

2. Procedural analysis

Respondent contends that this claim is procedurally defaulted because no objection was made at trial. The appellate court found that Darn failed to preserve a due process challenge to the statute by failing to object on that ground at trial. Cal. Ct. App. opinion, p. 12. The Ninth Circuit has recognized and applied the California contemporaneous objection rule in affirming denial of a federal petition on grounds of procedural default where there was a complete failure to object at trial. Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999).

The procedural bar could be overcome if Darn demonstrated cause and prejudice or a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). To demonstrate prejudice, Darn would have to show "not merely that the errors at his trial constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimension." White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989). Darn has not attempted to show cause and prejudice or a miscarriage of justice to avoid the procedural bar. This claim is procedurally barred.

In the alternative, the court now addresses the merits of the claim.

3. Analysis of the merits

A state's criminal law (such as an evidence law pertaining to criminal trials) does not violate the Due Process Clause "unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Montana v. Egelhoff, 518 U.S. 37 (1996). "It is not the State which bears the burden of demonstrating that its rule is deeply rooted, but rather respondent who must show that the principle of procedure violated by the rule (and allegedly required by due process) is so rooted in the traditions and conscience of our people as to be ranked as fundamental." Egelhoff, 518 U.S. at 47 (quoting Patterson, 432 U.S. at 202) (internal quotations omitted; emphasis in original) (rule that intoxication may be considered on the question of intent was not so deeply rooted as to be a fundamental principle enshrined by the Fourteenth Amendment). But simply finding a historical basis for or against a rule is not enough: "The Constitution does not encompass all traditional legal rules and customs, no matter how longstanding and widespread such practices may be. The Supreme Court has cautioned against the wholesale importation of common law and evidentiary rules into the Due Process Clause of [the] Constitution" United States v. LeMay, 260 F.3d 1018, 1024-25 (9th Cir. 2001), cert. denied, 534 U.S. 1166 (2002).

At Darn's trial, the court admitted the challenged evidence under California Evidence Code § 1108, which provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101 [which makes character evidence inadmissible to prove conduct in conformity therewith], if the evidence is not inadmissible pursuant to Section 352." California Evidence Code § 352, in turn, provides that the "court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

No Ninth Circuit decision has yet directly addressed the constitutionality of § 1108. However, § 1108 is analogous to Federal Rules of Evidence 413 and 414, which govern the admissibility of evidence of prior conduct in cases of sexual assault and child molestation. All allow admission of evidence of prior bad acts — sexual assaults under § 1108 and Rule 413, and molestations under Rule 414 — in cases involving similar crimes. The Ninth Circuit has rejected a due process challenge to Rule 414, and its reasoning guides this court's consideration of the similarly patterned California law for sexual assault cases. See United States v. LeMay, 260 F.3d at 1024, 1030. Federal Rule of Evidence 414 states that "evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant." LeMay determined that Rule 414 did not violate due process because Rule 403 (the federal analog to California Evidence Code § 352) functions as a filter, resulting in the exclusion of evidence that is so prejudicial as to deprive the defendant of his right to a fair trial. LeMay, 260 F.3d at 1026. In other words, the "application of Rule 403 to Rule 414 evidence eliminates the due process concerns posed by Rule 414." LeMay, 260 F.3d at 1027, quoting United States v. Castillo, 140 F.3d 874, 881 (10th Cir. 1998).

California Evidence Code § 1108 functions in an analogous fashion to Federal Rule of Evidence 414. Section 1108 allows for the introduction of evidence of prior sexual offenses committed by a defendant accused of a sexual offense and is subject to § 352 which excludes unduly prejudicial evidence. Like Rule 414, § 1108 does not pose a due process concern because the § 352 filter (the state analog to the Rule 403 filter) does not allow the admission of § 1108 evidence which is so prejudicial as to preclude the right to fair trial guaranteed by the Due Process Clause. Darn has not shown "that the traditional ban on propensity evidence involves a `fundamental conception of justice'" which is violated by § 1108. See LeMay, 260 F.3d at 1025. He thus has not shown that § 1108's allowance of propensity evidence in the limited area of sex offense cases violates due process.

A further reason Darn is not entitled to the writ is because he has not shown that the California Court of Appeal's rejection of his due process claim was contrary to or an unreasonable application of "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). As the Ninth Circuit has recognized, there is not much in the way of clearly established law on the propensity evidence question: "the Supreme Court has never expressly held that it violates due process to admit other crimes evidence for the purpose of showing conduct in conformity therewith, or that it violates due process to admit other crimes evidence for other purposes without an instruction limiting the jury's consideration of the evidence to such purposes. Indeed, the Supreme Court has expressly declined to answer these questions, see Estelle [v. McGuire], 502 U.S. at 75 n. 5 (`Because we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of "prior crimes" evidence to show propensity to commit a charged crime.')." Garceau v. Woodford, 275 F.3d 769, 774-75 (9th Cir. 2001), cert. granted in part, 123 S.Ct. 32 (2002).

4. Harmless error

Moreover, even if Darn's prior sexual assault was improperly admitted, he is entitled to relief only if the evidentiary error had a "substantial and injurious effect or influence in determining the jury's verdict." Calderon v. Coleman, 525 U.S. 141, 147 (1998); Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Bains v. Cambra, 204 F.3d 964, 976, 977 (9th Cir. 2000). Darn bears the burden of demonstrating prejudice under this test. Castillo v. Stainer, 997 F.2d 669 (9th Cir. 1993).

Here, the evidence was compelling that Darn forcefully raped D.H. D.H.'s vaginal injuries, the circumstances under which Darn was found, and Darn's subsequent admissions all persuasively established that the sex was nonconsensual. Therefore, even if there was an error in the admission of Darn's prior sexual assault, the error was harmless.

The admission of this evidence by the trial court did not violate Darn's right to due process. The California Court of Appeal's rejection of Darn's claim was not contrary to, or an unreasonable application of, clearly established federal law. Furthermore, as a result of the overwhelming evidence of Darn's guilt, the jury would have reached the same verdict even without the prior sexual assault evidence. Darn's claim regarding the admission of his prior sexual assault evidence fails on both procedural grounds and on the merits. Darn is not entitled to a writ on this claim.

D. Jury Instruction Regarding Prior Acts Evidence

The court's instruction on the evaluation of prior acts evidence was based on the 1999 revised version of CALJIC No. 2.50.01. RT 272-274, 463-466. Specifically, the court instructed the jury that,

"If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had this disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused. However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, at is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide."
RT 273, 465. CALJIC 2.50.01 tracks California Evidence Code § 1108, which Darn argues is unconstitutional.

The state appellate court rejected Darn's challenge to the jury instruction. The court found that Darn had waived the claim by failing to raise it in the trial court. And the state appellate court found the claim meritless, as CALJIC 2.50.01 was a correct statement of California law; neither the instruction nor Evidence Code § 1108 on which it was based violated due process.

The federal analysis of the jury instruction claim largely follows the analysis of the claim concerning California Evidence Code § 1108. Like the claim concerning § 1108, the due process claim concerning the jury instruction is procedurally defaulted because Darn did not raise it in the trial court. See Section "C.2," supra. And like the claim concerning § 1108, the due process claim concerning the jury instruction fails on the merits.

To obtain federal habeas relief for errors in the jury charge, the petitioner must show that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal quotes omitted). The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Id. In reviewing an ambiguous instruction, the court must inquire whether there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution. See id. at 72 & n. 4. A determination that there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution establishes only that an error has occurred. See Calderon v. Coleman, 525 U.S. at 146-47. If an error is found, the court also must determine that the error had a substantial and injurious effect or influence in determining the jury's verdict, see Brecht v. Abrahamson, 507 U.S. at 637, before granting relief in habeas proceedings. See Calderon v. Coleman, 525 U.S. at 146.

The state court determined that CALJIC 2.50.01 was a correct statement of California law. Darn has provided no reason to depart from the general rule that a federal habeas court will not revisit a determination of state law by the state appellate court. See Hicks v. Feiock, 485 U.S. 624, 629 (1988) (court is not free to review state court's determination of state law); cf. id. at 630 n. 3 (quoting West v. American Telephone & Telegraph Co., 311 U.S. 223, 237-38 (1940) (determination of state law made by an intermediate appellate court must be followed and may not be "`disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise'")).

The instruction did not so infect the trial that the resulting conviction violates due process. As noted, the instruction was a correct statement of California law. And it did not alter the burden of proof — the burden remained on the prosecution to prove guilt beyond a reasonable doubt. Indeed, the trial court "took extra precautions to ensure that admitting evidence of the prior sexual assault did not confuse the jury as to the prosecutor's burden of proof." Cal. Ct. App. Opinion, p. 13. The trial court explained to the jury (RT 274):

With regard to the alleged prior uncharged offense, the burden of proof is a lesser standard, by a preponderance of the evidence. I want you to clearly understand that, although the burden of proof as to the prior uncharged offense is preponderance of the evidence, that does not lessen the burden in any way the burden which must be satisfied by the prosecution as to the current charged offense . . . So, again, the burden of proof as to the prior alleged uncharged acts is preponderance of the evidence, a lighter burden. The burden as to the crime alleged as between Mr. Darn and D.H. is proof beyond a reasonable doubt. We'll try and keep those comments separate. And I will revisit that subject in my later instruction to you.
Finally, even if the instruction was erroneous, Darn has not shown that it had a substantial and injurious effect on the jury's verdict. The evidence against him was very strong. D.H.'s vaginal injuries (testified to by an independent medical provider), the circumstances under which Darn and D.H. were found (Darn naked with D.H.'s blanket covering him, and D.H. in her bedroom crying and partially disrobed), and Darn's later admissions all persuasively established that the sex was nonconsensual.

The California Court of Appeal's rejection of Darn's jury instruction claim was not contrary to or an unreasonable application of clearly established federal law. Darn is not entitled to the writ on this claim.

CONCLUSION

For the foregoing reasons, Darn's entire petition for writ of habeas corpus is DENIED. The clerk shall close the file.

IT IS SO ORDERED.


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