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Darby v. Ramirez-Palmer

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


September 6, 2005

THOMAS ALLEN DARBY, PETITIONER,
v.
ANA M. RAMIREZ-PALMER, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER GRANTING PETITION FOR A WRIT OF HABEAS CORPUS

Pursuant to the Ninth Circuit's recent decision in Bockting v. Bayer, 399 F.3d 1010, 1011 (9th Cir.), amended on denial of petition for reh'g, 408 F.3d 1127 (9th Cir.), petition for reh'g en banc denied, 2005 WL 1906932 (9th Cir. Aug. 11, 2005), applying Crawford v. Washington, 124 S.Ct. 1354 (2004) retroactively, the Court GRANTS Petitioner Thomas Allen Darby's petition for a writ of habeas corpus under 28 U.S.C. § 2254.*fn1

Petitioner, a State prisoner formerly incarcerated at the California Medical Facility in Vacaville, California,*fn2 filed a pro se petition for a writ of habeas corpus challenging the validity of his State conviction and sentence. Respondent Ana M. Ramirez-Palmer, Warden of the California Medical Facility, opposes the petition. Venue is proper because Petitioner is challenging a conviction and sentence imposed by the Humboldt County Superior Court, which is located in this judicial district. See 28 U.S.C. § 2241(d).

BACKGROUND

Petitioner was charged in State court in Humboldt County with one count of felony lewd and lascivious conduct with a child under the age of fourteen (Cal. Pen. Code § 288(a)) and two counts of misdemeanor possession of child pornography (id. § 311.11(a)). On October 29, 1997, a jury found Petitioner guilty of all charges. On February 26, 1998, Petitioner was sentenced to eight years imprisonment for the felony count and two 365-day concurrent terms on the misdemeanor counts with 466 days credit for time served.

On appeal to the California Court of Appeal, Petitioner argued ten grounds for reversing the judgment against him, including:

(1) the introduction of evidence of prior uncharged incidents to prove Petitioner's disposition to commit sex crimes was improper under California Evidence Code §§ 352, 1101, and 1108, as well as the Fourteenth Amendment right to a fair trial; (2) the application of California Evidence Code § 1108 to admit prior uncharged incidents violated Petitioner's due process and equal protection rights under the Fourteenth Amendment; (3) the admission of the child victim's audio- and video-taped out-of-court statements violated Petitioner's Confrontation Clause rights under the Sixth and Fourteenth Amendments; and (4) the court's finding and order concerning Petitioner's ability to pay costs of incarceration should be stricken.

On December 16, 1999, the California Court of Appeal struck the trial court's requirement that Petitioner pay the costs of incarceration and rejected all other claims. Petitioner then filed a petition for review in the California Supreme Court raising three claims, including: (1) the admission of prior uncharged acts violated his Fourteenth Amendment rights to due process, equal protection and a fair trial; and (2) the admission of the child victim's audio- and video-taped out-of-court statements deprived Petitioner of his Sixth Amendment right to confront the witnesses against him. On February 23, 2000, the California Supreme Court denied Petitioner's petition for review without citation or comment.

Petitioner filed a State petition for a writ of habeas corpus in superior court. The petition was denied in May 2000, and Petitioner appealed the denial. Later the same month the appeal was denied without written opinion. Petitioner filed a second habeas petition in superior court, which was pending when he filed his first federal petition for a writ of habeas corpus on December 7, 2000. See Darby v. Ramirez-Palmer, C 00-4607 CW. On July 23, 2001, his federal petition was dismissed without prejudice for failure to allege full exhaustion and because his second State habeas petition was still pending. In November 2001, Petitioner's second State habeas petition was denied by the Humboldt Superior Court. On February 13, 2002, the First District Court of Appeal denied Petitioner's appeal of the superior court decision.

On March 7, 2002, Petitioner filed a second federal petition for a writ of habeas corpus. On June 12, 2002, the Court issued an Order to Show Cause on two claims: (1) the violation of Petitioner's federal due process and equal protection rights by the admission of evidence of prior uncharged acts; and (2) the violation of Petitioner's Confrontation Clause rights by the admission of the child victim's out-of-court statements through third-party testimony without an opportunity for cross-examination. On October 2, 2002, Respondent filed her answer to the petition for a writ of habeas corpus and a memorandum of points and authorities in support thereof. On November 1, 2002, Petitioner filed his traverse. On August 30, 2004, the Court ordered supplemental briefing on Petitioner's Confrontation Clause claim in light of the United States Supreme Court's ruling in Crawford v. Washington, 124 S.Ct. 1354 (2004). Both parties filed supplemental memoranda. On March 18, 2005, the Court ordered additional supplemental briefing on Petitioner's Confrontation Clause claim in light of the Ninth Circuit's ruling in Bockting. Both parties filed supplemental memoranda. Since then, the Ninth Circuit issued an amended opinion in Bockting upon denial of rehearing, see 408 F.3d 1127, and denied the petition for rehearing en banc, see 2005 WL 1906932.

STATEMENT OF FACTS

The following statement of facts is taken verbatim from the unpublished opinion of the California Court of Appeal:*fn3

Ashley E., age 9 at the time of trial, was a friend of defendant's stepdaughter Brianna. Ashley E. testified that one day a couple of years before trial, defendant offered her a dollar to pull down her pants. This scared her; she told her mother and talked to the police about the incident. She stopped playing with Brianna after this.Lynzi J., age 11 at the time of trial, was also a former friend of Brianna. Defendant once told Lynzi that he had gotten caught in a janitor's closet with another girl, which scared Lynzi. Defendant told Lynzi he "peed" in a cup out on his back porch; she testified she had seen him do that. Once Brianna offered to let Lynzi read a sex book. Defendant told Lynzi he liked to lick girls' privates and to look at sex books. That same day they were playing hide-and-seek with Brianna's little sister Clarissa (Claire). When Lynzi came out of hiding she ran into the bedroom where she saw that defendant, Brianna, and Claire were all naked. Defendant was "just standing there." He told Lynzi to take off all her clothes, but she ran downstairs. She heard defendant say, "Wait," and Brianna followed her, saying, "My dad said wait." Brianna shut the door on Lynzi's arm, but Lynzi pushed her away and ran home, reporting the incident to her parents and the police.

Sharon S., age 10 at the time of trial, a friend of Lynzi, also used to play with Brianna. Defendant once asked Sharon if she wanted to see him naked. He also asked her if she wanted to see a movie, and Brianna explained it was a sex movie. Defendant asked Sharon if she would "pee" in a cup for a dollar, and he asked if she would pull down her pants for a dollar. Sharon reported these incidents to the police.*fn4

On November 22, 1996, Officer William Dobberstein of the Fortuna Police Department took a report from Lynzi J. and Sharon S. about defendant's inappropriate conduct. As a follow up to these reports, on December 30, 1996, Officers Dobberstein and Porter searched defendant's mini-storage unit pursuant to a search warrant, looking for evidence of child pornography. They seized a number of computer disks and a computer-generated story about Smurfs engaging in sexual acts. The computer disks contained child pornography - pictures of very young girls engaged in sexual acts.

Chris Andrews, a criminal investigator for the Humboldt County District Attorney's office, viewed the pictures on the disks. They showed children clearly under the age of 14 engaged in lewd or lascivious acts with other children or with adults. The children ranged in age from around 5 to 16 or 17. The majority were prepubescent. They were engaged in a variety of acts including simply posing in a lewd manner, masturbating, vaginal intercourse, oral copulation, and bestiality. Defendant had given the pictures code names indicating their content.*fn5 One of the images labeled "Deep Sea.JPG," depicted the Walt Disney character Little Mermaid, which had been altered to expose large breasts and a vaginal opening. Andrews knew from his training that a child molester would use such an image to show to a young victim and help break down the child's inhibitions or fear of sex. The police initiated an investigation of defendant concerning the unlawful possession of child pornography.

Nancy Y. is the grandmother of Ashley Y., whose fourth birthday was December 25, 1996.*fn6 (Ashley is the child of Nancy Y.'s son and Christie Y., who are divorced.) On Friday, January 17, 1997, Nancy was planning to pick up Ashley after work and take her home for the weekend. The mother, Christie, had recently moved, along with Ashley, her siblings Jamie and Virginia ("JenJen" or "Ginny"), a two-year-old sister, and Christie's boyfriend, Christopher (Chris) Darby (defendant's son). Because Nancy was not sure where the new house was she drove by on her lunch hour. When she got to the house she stopped to check the address. There was a large front window, and she saw Chris Darby inside. He was shirtless and leaning forward in the picture window. Ashley was leaning against his back. Nancy pulled in the driveway to turn around and decided to stop and knock on the door. She made eye contact with Chris, who quickly left the window. No one answered right away. Then defendant, whom Nancy had never met, answered the door. She introduced herself as Ashley's grandmother, entered, sat on the couch and talked with Ashley and JenJen. Nancy tried to make eye contact with defendant, but he did not make eye contact; he sat on a couch across the room. It was an uncomfortable situation. Chris went somewhere in the back of the house until right before Nancy left.

As Nancy spoke with Ashley she noticed the child squirming and pulling at her clothing in the crotch area. Nancy asked what was wrong, and Ashley said she hurt.

She said she had an "owie on her pee-pee." Nancy said, "Oh, I'm sorry. I'm sorry you hurt." and that was the end of the conversation. Nancy stayed about five minutes, because she had to go back to work. Chris came back into the room and introduced defendant as his dad. Nancy told Chris she would come back later to pick up Ashley. Sometime after 3 p.m. Nancy returned to the house. She had to knock more than once again. This time Christie, Ashley's mother, answered the door and admitted Nancy. After Ashley showed Nancy her new bed, and other things, they picked up her backpack, left and got into Nancy's car. As they backed out of the driveway, Chris drove up in his van. Nancy told Ashley to wave goodbye to Chris. She then looked down and noticed that Ashley was still pulling on her underwear, and Nancy asked if she was still hurting, to which Ashley replied, "Yes." Nancy asked, "Well, why are you hurting?" And Ashley "told [her] that Chris's papa had touched her pee-pee and made it hurt." The car was still in front of the house when Ashley made this statement.

Nancy drove directly to the police station. She told Ashley she needed to go there to talk to the police about what had happened. Ashley said she was afraid she would get arrested, but Nancy explained that the police did not arrest children, that the police were there to help, and that it would be okay. It took less than five minutes to drive to the Fortuna Police Department. They went inside right away. Nancy was trying to be calm; she told the officer at the front desk she thought her granddaughter had been molested. Nancy was then referred to Officer Kevin Stonebarger. He immediately contacted District Attorney Investigator Chris Andrews, because he was aware Andrews had previous contacts with defendant. Officer Stonebarger then interviewed Ashley for about five minutes, and he tape recorded the interview. Nancy said he talked to Ashley quietly and did not frighten her. During the interview Nancy tried "real hard to be normal" and not to influence or upset Ashley. Ashley told Officer Stonebarger that "grandpoppy touched her pee-pee and made it hurt." Ashley referred to defendant as her "grandpoppy" and to Christopher as her "daddy," although in the car she had told Nancy that "Chris's papa" had touched her. The audiotape was played to the jury over defense objection on hearsay grounds.*fn7

After the interview Nancy followed Officer Stonebarger to the hospital where Dr. Emily Miraie spoke with Nancy and examined Ashley. Dr. Miraie, a pediatrician, found no injuries. This was consistent with molestation, which does not always cause trauma, like tearing or bleeding. In fact, Dr. Miraie testified, "Most cases that just involve fondling or inappropriate sexual touching don't leave physical scars." Therefore, her examination findings were consistent with Ashley's story. Fortuna police arrested defendant that same day, January 17, 1997.

On Tuesday, January 21, 1997, Nancy took Ashley to the Child Abuse Services Team (CAST) Center in Eureka for an interview, where she was interviewed by Karen Lofts-Jarboe. The interview was taped by Investigator Andrews. Ms. Lofts-Jarboe was examined in detail about the one-hour interview, and the videotape was played for the jury over defense objection.*fn8 In the interview Ashley referred to Chris Darby as "daddy" and to defendant as "poppy" or "grandpoppy." At one point during the interview Ashley spontaneously said, "grandpa touched me on my pee-pee." Ashley demonstrated on a toy by "jabb[ing] the area between the legs of the stuffed bear." In another part of the interview, Ashley asked Ms. Lofts-Jarboe where her daddy touched her. Ms. Lofts-Jarboe pointed on the drawing to head, hair, shoulder, and hand, at which point Ashley asked whether Lofts-Jarboe's daddy touched her pee-pee. At another point Ms. Lofts-Jarboe asked Ashley whether her daddy did the same kind of things grandpoppy did, and the child said yes, but declined to elaborate.

On January 31, 1997, Officer Stonebarger executed a search warrant on defendant's residence at 2676 Campton Heights Drive in Fortuna. He retrieved from a garbage can 68 computer disks and a box. He also seized some videotape which depicted adults engaging in sexual activity. The computer disks were labeled in what appeared to be defendant's handwriting and used a numbering system consistent with that on disks previously seized from his storage locker. Officer Stonebarger found the contents of five of the disks to be pictures of young, naked children, and children engaged in sexual activity with adults.

Defendant's wife, ADreanen Darby, separated from defendant in November 1996. She testified that defendant owned computer equipment which included a scanner.

The defense presented no witnesses. People v. Darby, A082278, 1-6 (Dec. 16, 1999).

STANDARD OF REVIEW

Prisoners in State custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required 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); Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). The State's highest court must be given an opportunity to rule on the claims even if review is discretionary. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke "one complete round of the State's established appellate review process").

For purposes of exhaustion, pro se petitions in State court may, and sometimes should, be read differently from counseled petitions. Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003); see, e.g., Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003) (petitioner's pro se status in State court was a factor in favor of finding exhaustion where prisoner claimed ineffective assistance of counsel but failed to cite federal constitution or federal case law in support of his claim); see also Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002) (holding that "[p]ro se habeas petitioners occupy a unique position in the law" and "are to be afforded the benefit of any doubt") (citing cases) (internal quotation marks omitted); Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts have a duty to construe pro se petitions for writs of habeas corpus liberally).

To determine whether habeas relief is warranted, a federal court looks to the decision of the highest State court to address the merits of a petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000). A federal writ of habeas corpus 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 claims: "(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).

"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

"Clearly established federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Id. at 412. Cases decided after a petitioner's conviction may be applied retroactively only where they establish new rules of law and either (1) place "private individual conduct beyond the power of the criminal law-making authority to proscribe," or (2) are "watershed rules of criminal procedure" requiring observance of procedures "implicit in the concept of ordered liberty." Teague v. Lane, 489 U.S. 288, 307 (1989).

While a State court decision may not be overturned on habeas review simply because of a conflict with circuit-based law, circuit decisions may be relevant as persuasive authority to determine whether a particular State court holding is an "unreasonable application" of Supreme Court precedent or to assess what law is "clearly established." Clark v. Murphy, 331 F.3d 1062, 1070-71 (9th Cir. 2003), cert. denied, 540 U.S. 968 (2003); Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000).

Even if the State court's ruling is contrary to or an unreasonable application of Supreme Court precedent, that error justifies habeas relief only if the error could have had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see, e.g., DePetris v. Kuykendall, 239 F.3d 1057, 1063-65 (9th Cir. 2001) (exclusion of evidence was an unreasonable application of federal law and had a substantial and injurious effect on verdict).

DISCUSSION

I. Confrontation Clause Claim

In the present petition, Petitioner raised his Confrontation Clause claim based on the following supporting facts: "admission of the child victim's out of court statements through third persons and the failure of the court to arrange for her testimony or cross examination by available means under law." (Petition at 5.) Based on a review of the State court documents attached to the pleadings, the Court construes Petitioner's claim to assert a claim for relief under the Confrontation Clause based on the admission of tapes of Ashley's audio- and video-taped interviews with Officer Kevin Stonebarger and Karen Lofts-Jarboe.

The admissibility of the taped testimony under the Confrontation Clause was not briefed by Respondent in her answer, although this foundation for Petitioner's Confrontation Clause claim was exhausted in the State courts. Respondent addressed a Confrontation Clause claim arising from the admission of out-of-court statements through the testimony of third parties, Ashley's grandmother, Nancy Y., and child counselor, Teri Vodden. This claim was not exhausted in State court. In his pleadings, Petitioner referred consistently only to the taped testimony. Respondent was given an opportunity to address Petitioner's Confrontation Clause claim arising from the admission of Ashley's taped statements in her second supplemental brief.

Because Petitioner's Confrontation Clause claim arising from the admission of Ashley's taped testimony was denied by the State courts on the merits, the Court considers whether the State court's rejection of the claim was contrary to or an unreasonable application of settled federal law. 28 U.S.C. § 2254(d).

The court of appeal's denial of Petitioner's Confrontation Clause claim was based on its application of Idaho v. Wright, 497 U.S. 805 (1990). In light of the recent Ninth Circuit decision in Bockting, the Court is required to review the court of appeal's decision based on a retroactive application of Crawford v. Washington as clearly established federal law.

Under the Sixth Amendment, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. This confrontation right applies to the States through the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 403 (1965). A defendant's right to cross-examine the witnesses brought against him is a fundamental right under the Confrontation Clause. Id.

The rights of the accused under the Sixth Amendment's Confrontation Clause may prohibit the introduction of evidence that otherwise would be admissible under a hearsay exception. Wright, 497 U.S. at 813, 814. The Supreme Court recently reexamined this right in Crawford v. Washington, 124 S.Ct. at 1354.

The prior rule, articulated in the Supreme Court cases of Ohio v. Roberts and Idaho v. Wright, allowed out-of-court statements to be admitted if the declarant was unavailable and the statement fit under a "firmly rooted hearsay exception" or was supported by "particularized guarantees of trustworthiness." See Wright, 497 U.S. at 814-15; Ohio v. Roberts, 448 U.S. 56, 65, 66 (1980). Under Crawford, out-of-court testimonial statements may be admitted only where the declarant is unavailable and the opposing party had a prior opportunity for cross-examination. Crawford, 124 S.Ct. at 1369.

Unavailability is governed by relatively strict rules requiring that the witness be "demonstrably unable to testify in person." Id. at 1360.

The Supreme Court's requirement of a prior opportunity for cross-examination is based on the historical development of the Confrontation Clause and a literal reading of the text of the Sixth Amendment. Crawford, 124 S.Ct. at 1365. In Crawford the Court held, "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at 1374.

The Crawford Court declined to define precisely what is meant by the term "testimonial," holding, "Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." Id. The Court also declined to define the term "interrogation." Id. at 1365 n.4.

The Supreme Court has not yet addressed the retroactivity of Crawford. Recently, however, the Ninth Circuit found Crawford retroactive in Bockting, applying it to a petition for a writ of habeas corpus where the petitioner's conviction had been final before the Supreme Court handed down the Crawford decision.*fn9

In Bockting, the petitioner, Marvin Bockting, was accused of sexually abusing his six-year old stepdaughter, Autumn Bockting. Bockting, 399 F.3d at 1012. After Autumn made comments to her mother, Lara, that led her to believe Autumn had been sexually abused by her stepfather, Lara called a rape crisis hotline and took Autumn to the hospital for a rape examination. Id. at 1013. A police detective, Detective Zinovitch, interviewed Autumn two days later. Id. Autumn described the positions of the sex acts and demonstrated the acts with anatomically correct dolls. Id. At the preliminary hearing, Autumn became upset during examination and the court declared her unavailable. Id.

Only Lara and Detective Zinovitch testified. Id. The petitioner was convicted and sentenced to life in prison. Id.

The Bockting court applied to the Crawford decision the tests for retroactivity set forth in Teague, 489 U.S. at 307, and Schriro v. Summerlin, 124 S.Ct. 2519 (2004), and found, "Because the Crawford rule is both a 'watershed rule' and one 'without which the likelihood of an accurate conviction is seriously diminished,' Summerlin, 124 S.Ct. at 2523, the rule is retroactive." Id. at 1012-13 (emphasis in original). The Ninth Circuit then applied Crawford to the Nevada Supreme Court's decision and found the State court opinion "contrary to" settled federal law. The Bockting court wrote:

As we now know, but the Nevada Supreme Court could not have divined, Crawford dictates the right to cross-examine the witness. The progeny of [Ohio v.] Roberts, such as the multi-factor reliability test developed in Idaho v. Wright, cannot override the right of confrontation. Thus, the Nevada Supreme Court's decision was "contrary to" established Supreme Court precedent in Crawford, as made retroactive under Teague and Summerlin.

Id. at 1021 (internal citations omitted).

The Bockting court did not address whether the statements made by the child victim of sexual abuse to the investigating police detective were testimonial but apparently assumed that they were. See id. at 1012. It ruled that the Nevada Supreme Court's reliance on Ohio v. Roberts to determine that the detective's hearsay testimony was properly admitted because Autumn's statements bore the requisite "particularized guarantees of trustworthiness" was contrary to settled federal law. Id. at 1021. Admission of Detective Zinovitch's testimony regarding his interview with Autumn was constitutional error under Crawford because the petitioner had no opportunity to cross-examine Autumn. Id.

In its amended opinion, the Bockting court concluded that the admission of Autumn's out-of-court statement had a substantial and injurious effect or influence in determining the jury's verdict under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). 408 F.3d at 1127. The detective's testimony regarding Autumn's interview was a critical piece of evidence, particularly in view of Autumn's inconsistent testimony at the preliminary hearing and weaknesses in Laura Bockting's testimony. Id. Thus, even if Autumn's statement to the mother was, for argument's sake, considered admissible, the "detective's description of Autumn's interview was so significant as corroborating evidence that its admission had a substantial and injurious effect or influence in determining the jury's verdict." Id. Therefore, the admission of Autumn's statement required the court to grant the petition for a writ of habeas corpus. Id.

In accordance with the Ninth Circuit's decision in Bockting, this Court must determine whether the California Court of Appeal's determination was contrary to or an unreasonable application of the confrontation right defined in Crawford. Bockting, 399 F.3d at 1021; 28 U.S.C. § 2254(d)(1)-(2).

In a remarkably similar factual situation, Petitioner's Confrontation Clause claim arises from the admission of statements made by Ashley in initial interviews with a police officer and a child psychologist associated with the police department, both of whom interviewed her during the investigation of charges of sexual abuse. The trial court declared Ashley unavailable and admitted the tapes of her statements after concluding that they met the Idaho v. Wright standards of "adequate 'indicia of reliability'" and "particularized guarantees of trustworthiness."

Similarly, Petitioner had no opportunity for prior cross-examination of an unavailable witness, as required by Crawford.

Absent the taped statements, the primary evidence that corroborated the charges against Petitioner in the present case was the testimony of Ashley's grandmother, Nancy Y.; a letter from Petitioner to his wife in which he "acknowledged he needed help and was praying to be sent to an institution;" the testimony of three young girls about prior uncharged incidents in which Petitioner made inappropriate comments to them; and Petitioner's collection of child pornography. Darby, A082278 at 4, 22. There was no evidence of physical injury. Id. at 5. Ashley's recorded statements were significant pieces of evidence in the case presented against Petitioner. The Court cannot meaningfully distinguish the state of the evidence in this case from that in Bockting. Under Bockting, this Court must conclude that the admission of Ashley's taped testimony had a substantial and injurious effect or influence in determining the jury's verdict.

Addressing Bockting, Respondent argues: (1) the decision to apply Crawford to a conviction that was final before Crawford failed to command a majority, (2) if it did command a majority, then Bockting was wrongly decided, and (3) if this Court is bound by Bockting to apply Crawford retroactively, then Petitioner's claims are not exhausted. First, Respondent is incorrect that there is no majority opinion in Bockting. Although Judge Noonan's concurrence opined that Crawford did not announce a new rule, he concurred with Judge McKeown "as an alternative to the foregoing analysis and in order to provide a precedent for this court." Bockting, 399 F.3d at 1024 (Noonan, J., concurring). Moreover, since the original Bockting opinion issued both the original panel and the Ninth Circuit en banc have denied rehearing.

Second, whether Bockting was wrongly decided or not, the decision is controlling authority. Respondent does not attempt to distinguish it from the present case; it must govern this Court's decision.

Third, although exhaustion was not discussed in Bockting, the Ninth Circuit ruled that the State court's failure to comply with Crawford mandated reversal of the conviction, even though the issue had not been presented to the State court. Id. at 1012. This Court will do the same.

Because the Court finds that the California Court of Appeal's decision regarding Petitioner's Confrontation Clause claim arising from the admission of Ashley's taped statements is contrary to established federal law, and that the error had a substantial and injurious effect or influence in determining the jury's verdict, the petition for a writ of habeas corpus is granted.

II. Due Process and Equal Protection Claims Arising from the Admission of Prior Bad Acts

The State Court of Appeal's legal conclusions regarding Petitioner's claims that the admission of evidence about prior uncharged acts under California Evidence Code §§ 1101 and 1108 violated his Fourteenth Amendment rights of due process and equal protection are as follows:

II. Admission of Prior Uncharged Incidents

Prior to trial the district attorney noticed a motion to offer evidence at trial of defendant's uncharged conduct as to Lynzi J., Sharon S. and Ashley E. under sections 1101, subdivision (b) and 1108. The three girls testified at an evidentiary hearing on the People's motion substantially as they did later at trial. The district attorney explained she was offering the evidence under four theories: First, to show defendant's specific intent to arouse lust or passion of himself or the victim, an element of violation of Penal Code section 288, subdivision

(a); second, to prove defendant's motive, namely his prurient interest in or lust for children; third, to show under section 1101 subdivision (b) defendant's common plan or scheme of annoying and molesting children over a three year period; and fourth, as corroboration under section 1108. Defense counsel argued the three girls' testimony was not relevant because defendant did not touch or attempt to touch them. He urged the court to exclude the evidence under section 352 because any relevance was outweighed by danger of undue prejudice.

The court, having considered oral and written argument, and after exercising its discretion under section 352, admitted the three girls' testimony under both section 1101, subdivision (b), to show intent, motive, and common plan or scheme, and section 1108, as construed in People v. Fitch (1997) 55 Cal.App.4th 172.

A. Section 1101 - Prior Instances of Conduct Defendant contends the evidence was not properly admissible for any of the purposes cited by the court. In relevant part, section 1101 excludes, with specified exceptions, character evidence in the form of specific instances of conduct, unless such evidence is relevant to prove some fact such a motive, intent, or plan. In other words, the prosecution cannot introduce the evidence simply to show defendant has a propensity to commit crimes. To be admissible under section 1101, the evidence must be introduced to prove a material fact; the uncharged offense must have a tendency to prove the material fact; and there must be an absence of a rule or policy requiring its exclusion. Also, the trial court must determine that its probative value outweighs its prejudicial effect. (People v. Tapia (1994) 25 Cal.App.4th 984, 1021, citing People v. Thompson (1980) 27 Cal.3d 303, 315.)

Defendant pled not guilty and did not testify, placing every element of the charged offense, including intent, in issue. If the prosecution could show defendant touched the victim in a sexual manner and hurt her, his intent in that touching was material. Defendant's previous sexual conduct with the other three girls had a tendency to prove that intent even though his prior conduct did not culminate in touching. For the prior conduct to be admissible to show intent, it need not be identical to the charged offense; only "substantial similarity" is required. (People v. Tapia, supra, 25 Cal.App.4th at p.1021.) Also, the prior conduct was material and tended to show defendant acted with a common plan or scheme in all the incidents. "[T]he plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense." (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)

B. Section 1108 - Defendant's Prior Sexual Conduct

The trial court properly admitted the three girls' testimony under section 1108, as construed in People v. Fitch, supra, 55 Cal.App.4th 172. An attack on the constitutionality of section 1108 similar to defendant's was recently rejected by our Supreme Court, which upheld the validity of Fitch, in People v. Falsetta (1999) 21 Cal.4th 903, 912-922. The Falsetta court stressed, as did Fitch, that section 1108 is saved from possible constitutional invalidity by the trial court's discretion under section 352 to exclude the propensity evidence. In his concurring opinion, Justice Mosk pointed out that in the case before the court, the evidence introduced under section 1108 was of the defendants' prior convictions, not simply prior conduct. (People v. Falsetta, supra, 21 Cal.4th at p.925.) But the Falsetta majority made clear that a conviction is not required and that this distinction would not change the admissibility of the evidence. (Id., at ¶. 916-917.) Rather it would be a factor to be considered by the trial court in exercising its discretion under section 352.

The court below was aware of its discretion under section 352, and we find no abuse in its exercise of that discretion. Thus, the evidence was properly admitted under section 1108 as well.

Darby, A082278 at 12-14.

Permitting a jury to hear evidence of prior crimes or bad acts may violate due process. See Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983); Fritchie v. McCarthy, 664 F.2d 208, 212 n.1 (9th Cir. 1981) (citing Spencer v. Texas, 385 U.S. 554, 561 (1967)). A State court's procedural or evidentiary ruling is not subject to federal habeas review, however, unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991).

The admission of other crimes evidence violates due process where there are no permissible inferences the jury can draw from the evidence, in other words, no inference other than conduct in conformity therewith. See McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir. 1993); Jammal, 926 F.2d at 920. The relevance of the evidence of other bad acts to motive or intent, the opportunity for the jury to weigh the credibility of the witness's account of the other bad acts, and the judge's use of cautionary jury instructions to limit the jury's consideration of the other bad acts all are factors a federal court may consider to determine whether a due process violation occurred. See, e.g., Terrovona v. Kincheloe, 912 F.2d 1176, 1180-81 (9th Cir. 1990) (admission of other bad act testimony did not violate due process where trial court balanced probative weight against prejudicial effect and gave jury cautionary instruction), cert. denied, 499 U.S. 979 (1991); Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990) (admission of uncharged crimes did not violate due process where trial court gave limiting instruction to jury, jury was able to weigh witness's credibility and evidence was relevant to defendant's intent); Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir. 1985) (admission of uncharged offenses does not violate constitutional rights where jury had opportunity to weigh credibility of complaining witness and judge admonished jury to consider incident only as evidence of intent, not as evidence of bad character).

A statute or rule of evidence allowing admission of evidence of prior crimes to show a propensity to commit a charged sexual offense does not facially violate due process if the evidence to be admitted is subject to a balancing test by the trial court. See United States v. LeMay, 260 F.3d 1018, 1030-31 (9th Cir. 2001) (Federal Rules of Evidence 413 and 414, allowing evidence of prior sexual offenses to show a propensity to commit the charged offense, do not violate due process because evidence is subject to Rule 403 trial court balancing test which provides for meaningful appellate review); People v. Falsetta, 21 Cal. 4th 903, 907, cert. denied, 529 U.S. 1089 (2000) (upholding the constitutionality of California Evidence Code § 1108, permitting admission of prior uncharged sex crimes for the purpose of demonstrating propensity of a defendant charged with a sex offense, because evidence is subject to § 352 trial court balancing test).

Accordingly, a federal court cannot disturb on due process grounds a State court's decision to admit evidence of prior crimes or bad acts unless the admission of the evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986).

In addition, the admission of prior crimes evidence does not violate the Equal Protection Clause of the Fourteenth Amendment unless it targets a suspect class, burdens a fundamental right, or fails to "bear[] a rational relation to some legitimate end." United States v. Mound, 149 F.3d 799, 801 (8th Cir. 1998) (quoting Romer v. Evans, 517 U.S. 620, 631 (1996)).

A. Claim of Violation of California Evidence Code § 1101

In his opening brief to the court of appeal, Petitioner alleged that the trial court improperly admitted evidence of prior bad acts under § 1101 with disregard for the overwhelming threat of prejudice in violation of his Fourteenth Amendment right to a fair trial. In Petitioner's traverse, he argues that the testimony of the three young girls was "extremely inflammable [sic] . . . because it did not show intent, motive or common plan" as required by § 1101. (Response at 3.) In addition, Petitioner alleges that prior acts were improperly admitted because they were not sufficiently similar, in that they did not involve touching or molestation as did the felony charge.

The court of appeal's decision addressed Petitioner's claim strictly as a State law claim regarding the application of § 1101. Where the State court gives no reasoned explanation of its decision on a petitioner's federal claim and there is no reasoned lower court decision on the claim, a review of the record is the only means of deciding whether the State court's decision was objectively reasonable. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir. 2002); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). Therefore, this Court must conduct an independent review of the record.

Here, the court of appeal's decision concluded that the testimony recounting prior acts was properly admitted under the balancing test because it was relevant to show intent and common plan or scheme and demonstrated "substantial similarity" to the charged offense under People v. Tapia, 25 Cal. App. 4th 984, 1021 (1994). Tapia relies on a standard similar to that applied under federal law. See United States v. Sneezer, 983 F.2d 920, 924 (9th Cir. 1992). In addition, the witnesses delivered their testimony in the courtroom, subject to cross-examination and critical closing argument by defense counsel which distinguished the acts from the charge against Petitioner. Moreover, the jury was given extensive instructions regarding proper consideration of the prior acts evidence. (Clerk's Transcript (CT) at 329.)

The record before the Court shows that the trial court's admission of the other bad acts evidence was not arbitrary or so prejudicial that it denied Petitioner the trial guaranteed by due process. Accordingly, Petitioner's due process claim based on the admission of other bad acts evidence under § 1101 is denied.

B. Claim Based on California Evidence Code § 1108

In his opening brief to the court of appeal, Petitioner claimed that the admission of prior acts under § 1108 violated his right to due process because it presented a threat to fundamental fairness, based on historical practice and actual operation. In his traverse here, he contests the admission of uncharged acts which did not result in criminal conviction as particularly prejudicial. Petitioner also alleged in his opening brief on appeal that the application of § 1108 violated his right to equal protection by removing evidentiary protections for only one group, "persons who are accused of certain sexual offenses who also have allegedly committed prior sex offenses," without any satisfactory justification. (AOB at 29.)

The California Court of Appeal's decision on this claim relied primarily on People v. Falsetta, 21 Cal. 4th 903, 907, cert. denied, 529 U.S. 1089 (2000), in which the California Supreme Court upheld the constitutionality of California Evidence Code § 1108.

If a State court considers only State law when addressing the merits of a claim raised later in a federal habeas corpus petition, the federal court must ask whether State law, as explained by the State court, is contrary to clearly established governing federal law. See Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir. 2001); see also, e.g., Hernandez v. Small, 282 F.3d 1132, 1141 (9th Cir. 2002) (State court applied correct controlling authority when it relied on State court case that quoted Supreme Court for proposition squarely in accord with controlling authority).

In Falsetta, the California Supreme Court relied on a number of federal circuit court cases in the absence of clearly established United States Supreme Court precedent. In particular, it relied upon United States v. Mound, 149 F.3d 799 (8th Cir. 1998), United States v. Castillo, 140 F.3d 874 (10th Cir. 1998), United States v. Guardia, 135 F.3d 1326 (10th Cir. 1998), and United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998). These cases hold that Federal Rules of Evidence 413 and 414 (on which California Evidence Code § 1108 is modeled) do not violate the Due Process Clause because the balancing of probative value against threat of prejudice required by Rule 403 maintains their constitutionality. See Mound, 149 F.3d at 800-01; Castillo, 140 F.3d at 881-83; Guardia, 135 F.3d at 1332; Enjady, 134 F.3d at 1433-34. In Falsetta, the California Supreme Court likewise concluded, "[W]e believe section 352 provides a safeguard that strongly supports the constitutionality of section 1108." Falsetta, 21 Cal. 4th at 916.

The appellate court here found no abuse of discretion in the trial court's ruling on the admissibility of the evidence under § 1108 and § 352's balancing test.

The court of appeal also relied on Falsetta's ruling that a conviction is not required for the admission of a prior act, but that this factor should be included in the trial court's balancing test. See Darby, A082278 at 14. This is in accord with the federal case law cited in Falsetta. See Falsetta, 21 Cal. 4th at 917 (citing Enjady, 134 F.3d at 1433; Guardia, 135 F.3d at 1330-31 (citing Old Chief v. United States, 519 U.S. 172, 181 (1997)). The court of appeal's ruling was not contrary to established federal law and its application of the law was not unreasonable.

Petitioner's equal protection claim was not addressed in the California Court of Appeal's decision. Thus, this Court must conduct an independent review of the record to determine whether the State court's decision was an unreasonable application of clearly established federal law. Himes, 336 F.3d at 853; Delgado, 223 F.3d at 982; accord Lambert, 393 F.3d at 970 n.16.

Alleged sex offenders have not been recognized as a suspect class. LeMay, 260 F.3d at 1030-31. Therefore, California Evidence Code § 1108 is subject only to rational basis review. Id. The Eighth Circuit has ruled that Federal Rule of Evidence 413 does not violate the Fifth Amendment's equal protection guarantee because "promoting the effective prosecution of sex offenses" is a legitimate government interest and Rule 413 is well-suited to address the particularities of sexual assault cases, such as battles over credibility. Mound, 149 F.3d at 801. The Tenth Circuit applied rational basis review and located "plausible reasons" for Congress's enactment of Rule 414, including "the highly secretive nature of these sex crimes" and the need to corroborate the child victim's testimony. Castillo, 140 F.3d at 883; see Enjady, 134 F.3d at 1433-34 (Rule 413 is not unconstitutional as a violation of equal protection because of the State's legitimate interest in effective sexual assault prosecution).

In Falsetta, the California Supreme Court upheld § 1108 against an equal protection challenge on the grounds that "the Legislature reasonably could create an exception to the propensity rule for sex offenses, because of their serious nature, and because they are usually committed secretly and result in trials that are largely credibility contests." Falsetta, 21 Cal. 4th at 918. Therefore, the Court concludes § 1108 does not violate the Equal Protection Clause of the Fourteenth Amendment because it is rationally related to a legitimate government interest. The decision of the court of appeal is not contrary to or an unreasonable application of clearly established federal law.

CONCLUSION

Although Petitioner's due process and equal protection claims arising from the admission of evidence of prior uncharged incidents lack merit, because of the violation of Petitioner's rights under the Confrontation Clause as recently interpreted in Crawford and Bockting, the petition for a writ of habeas corpus must be GRANTED. Respondent's implementation of this Order is hereby STAYED while the petition for a writ of certiorari from the United States Supreme Court is pending in Bockting. Respondent shall notify the Court within ten (10) days of the Supreme Court's decision to grant or deny certiorari. If certiorari is denied in Bockting, the Court will left the stay and Petitioner must be retried ninety days thereafter or his conviction must be set aside. If certiorari is granted, the stay will remain in effect until a decision is issued by the Supreme Court.

The Clerk of the Court shall enter judgment and close the file.

IT IS SO ORDERED.


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