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September 19, 2005.

RICARDO F. PEREZ, Petitioner,
W.A. DUNCAN, warden, Respondent.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge



Ricardo Perez ("Perez"), a California prisoner, filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his 2002 conviction in Santa Clara County Superior Court. The court ordered respondent to show cause why the petition should not be granted. Respondent filed an answer, and Perez filed a traverse. This court will deny his petition on the merits. BACKGROUND*fn1

  A. The Crimes

  Perez was convicted of numerous sexual assaults against Arlynn and Adrianna, two children under the age of 14. At trial, the prosecution also introduced evidence of uncharged sexual crimes against a third child, Anita.

  In 1991, Perez became friends with the brother of five year old Arlynn. Perez began visiting Arlynn's home almost daily, and her family soon treated him like a brother and a son. When Arlynn entered kindergarten, Perez began molesting her. He grabbed her lewdly and rubbed her private parts, made her touch his penis, and forced intercourse on her. Perez capitalized on instances during which Arlynn's family had left the room or turned their backs to accost her. Arlynn estimated that, over the course of seven years, Perez molested her over one hundred times. She testified that Perez "penetrated her with his penis 10 or 15 times, with his finger around 15 times, and rubbed the outside of her vagina many times." Cal. Ct. App. Opinion at 3. The last incident occurred when she was twelve.

  In May of 2001, Arlynn finally told her family members about Perez's behavior, and they promptly informed the police. Arlynn provided the police with a recorded statement, similar to her trial testimony, detailing the incidents of sexual assault. The prosecution introduced the statement at trial. During police-monitored calls from Arlynn's mother to Perez, he admitted having touched and molested Arlynn. He also confessed directly to the police to having molested Arlynn. However, he gave inconsistent accounts of the frequency with which the molestations occurred.

  In 1995, Perez had a daughter, Adrianna. One year later, Perez and Adrianna's mother broke up, and Adrianna commenced visiting her father on alternate weekends and holidays. At around the age of 5 or 6, Adrianna became clingy and disobedient, and complained that she didn't want to visit her father. When Adrianna's mother learned that the police had arrested Perez for child molestation, she asked Adrianna if Perez had ever touched her. Adrianna admitted that Perez had "sexed" her. Cal. Ct. App. Opinion, p. 5. She reported that her father had penetrated her vagina with his fingers and his penis and put his penis in her rectum. She repeated her account to the police in a videotaped interview, indicating that Perez had either fondled her or had intercourse with her every time she visited him. She testified similarly during both a preliminary hearing and at trial. At one point, she estimated Perez had molested her one hundred times, though she could not always recall the number of occurrences. The prosecution introduced both the videotape and preliminary hearing evidence at trial.

  Adrianna's cousin Anita testified at trial regarding Perez's uncharged sex offenses. Her testimony was allowed pursuant to California Evidence Code section 1108, which permits admission of evidence of an accused's prior sexual misconduct to establish a propensity for sexual assault. Anita stated that Perez, a friend of her brother's, had molested her when she was about seven or eight years old. She testified that, over the period of a year, Perez touched her almost every time he came to her house, about once per month.

  Other evidence introduced at trial included the following: an expert on the child sexual abuse accommodation syndrome testified to explain children's behavioral reactions regarding disclosure of molestation; a physician's assistant who had examined Adrianna testified about the examination and stated that she had found no definitive evidence of penetration, although she did not find this significant because sexual assaults did not always leave evidence of trauma; and Perez's family members testified to Perez's apparent lack of sexual interest in Adrianna and her apparent happiness when visiting her father. Cal. Ct. App. Opinion, p. 6.

  B. Procedural History

  The District Attorney charged Perez with multiple counts of sex crimes against Arlynn and Adrianna. Prior to the trial on the sex crimes, the court held a trial to determine whether Perez was competent to stand trial. The jury found him competent. At the trial on the criminal charges, the jury found Perez guilty of sixteen counts of lewd acts by force on a child under 14, six counts of aggravated sexual assault on a child under 14, and three counts of misdemeanor assault. See Cal. Penal Code §§ 288(b), 269, 240. Perez received a total prison sentence of 225 years to life. The California Court of Appeal affirmed the conviction in all respects. The California Supreme Court denied review.

  Perez subsequently filed this habeas action. Perez alleges four claims in his petition: (1) the exclusion of evidence of his mental retardation violated his rights to due process and to present a defense, (2) the admission of evidence under California Evidence Code section 1108 regarding acts he committed before its enactment violated his rights under the Ex Post Facto Clause, (3) the admission of section 1108 evidence of uncharged prior sex offenses violated his rights to due process and a fair trial, and (4) the use of pattern jury instruction CALJIC 2.50.01 at his trial violated his right to due process because it lessened the prosecutor's burden of proof.


  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 Santa Clara County, California, which is located within this judicial district. 28 U.S.C. § 2241(d).


  This court may entertain a petition for a writ of habeas corpus submitted by an individual in custody pursuant to a state court judgment only if the custody violates the United States Constitution, laws or treaties. 28 U.S.C. § 2254(a) (2005); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court may not grant a petition challenging a state conviction or sentence unless the state court's adjudication "(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) (2005); Williams v. Taylor, 529 U.S. 362, 402-403 (2000).

  A state court decision qualifies as "contrary to" federal law if it directly contravenes a Supreme Court decision on a question of law, or reaches a conclusion converse to a Supreme Court decision with materially indistinguishable facts. Williams, 529 U.S. at 413. A state court decision involves an "unreasonable application" of federal law if it "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." Williams, 529 U.S. at 412-413. In determining whether a state court's decision contravenes or unreasonably applies clearly established federal law, a federal court examines the decision of the highest state court to address the merits of a ...

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