United States District Court, N.D. California
September 19, 2005.
RICARDO F. PEREZ, Petitioner,
W.A. DUNCAN, warden, Respondent.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
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
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.
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 Santa Clara 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 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 petitioner's claim in a reasoned decision. LaJoie v.
Thompson, 217 F.3d 663, 669 n. 7 (9th Cir. 2000). In this case,
the highest state court to issue a reasoned opinion was the
California Court of Appeal.
Prisoners in state custody who seek federal habeas relief must
first 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 intend to raise in federal court. See
28 U.S.C. § 2254(b)-(c). The parties do not dispute that Perez
exhausted state court remedies for claims in this petition.
A. Exclusion Of Evidence Regarding Perez's Mental Retardation
Perez contests the exclusion of evidence relating to his mild
mental retardation. He suggests that the evidence would have
established that he lacked the aptitude to commit the number of offenses charged.*fn2 During the competency trial,
Perez's attorney presented expert testimony on Perez's borderline
mental retardation. Cal. Ct. App. Opinion at 14. The jury also
considered evidence indicating that Perez led a normal life; he
graduated from high school, took college classes, interacted
normally with others, followed directions, spoke fluent English
and Spanish, and drove a car. Id. The jury found Perez
competent to stand trial. Id. at 1. After he was found
competent to stand trial, a separate trial was held on the
criminal charges against him.
During his opening statement at trial on the criminal charges,
the defense attorney informed the jury that it would hear
evidence regarding Perez's mental defects. Id. at 14. The
prosecutor objected to the admission of the mental retardation
evidence. Id. at 15. During bench conferences discussing the
prosecutor's objections, the judge indicated that Perez could
present the evidence to prove lack of specific intent. Id. at
15. Perez's attorney, however, stated that he wanted to offer the
evidence not to disprove specific intent, but to show that Perez
lacked the ability to plan and carry out all the crimes of which
he had been accused. Id. at 15.*fn3 The prosecutor replied
that the charged crimes did not require master planning, stating
"`[i]t is as simple as him grabbing or pulling someone into a
room.'" Id. The trial court sustained the prosecution's
objections but stated that the evidence could be admitted as to
specific intent. Later, during the presentation of evidence, the
defense attempted to introduce evidence about Perez's limited
intellect, but the court sustained the prosecution's same objections made earlier.
In evaluating the exclusion of Perez's mental retardation
evidence, the California Court of Appeal determined that, due to
the evidence's limited probative value, its exclusion did not
violate Perez's constitutional rights to present a defense. Cal.
Ct. App. Opinion at 16-17. The appellate court also found that,
even if the exclusion had been an error, it would have been
harmless beyond a reasonable doubt. See id. at 17 (citing
Chapman v. California, 386 U.S. 18 (1967)). Evidence had
already been presented from which the jury could infer Perez
possessed a limited intellect. Id. Perez's friendship with
Arlynn's brother, a boy much younger than Perez, indicated he
wasn't functioning at the usual teenage or adult level. Id.
Additionally, persuasive evidence inculpated Perez. Perez's own
admissions showed that "however limited [his] intellect might be,
he was capable of committing, and did commit, furtive sex crimes"
against Arlynn. Id. Also, testimony from his mother showed that
he had ample opportunities to molest Adrianna as she had slept
alone with Perez. Id.
The Sixth Amendment guarantees criminal defendants the right to
present a defense. Chambers v. Mississippi, 410 U.S. 284, 294
(1973). However, a district court may not collaterally review a
state court evidentiary ruling unless it violates federal law,
either by violating a specific constitutional provision or by
infringing upon the due process right to a fair trial. Pulley v.
Harris, 465 U.S. 37, 41 (1984). Exclusion of evidence does not
contravene due process 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, 43 (1996) (citation omitted). In evaluating whether the
exclusion of evidence offends constitutional rights, a court
assesses the probative value, reliability, and comprehensibility
of the excluded evidence, whether the evidence is cumulative, and
whether it constitutes a significant portion of the attempted
defense. Chia v. Cambra, 360 F.3d 997, 1004 (9th Cir. 2004).
The court also must consider the state interests underlying the
evidentiary rules. Id. at 1006. If exclusion of the evidence
amounted to constitutional error, the erroneous exclusion must
have had "a substantial and injurious effect" on the verdict to
justify federal habeas relief. Brecht v. Abrahamson,
507 U.S. 619, 623 (1993). Balancing the factors enumerated in Chia permits the
conclusion that exclusion of Perez's mental retardation evidence
did not violate his due process or Sixth Amendment rights.
Chia, 360 F.3d at 1004. The state has an obvious interest in
restricting irrelevant evidence. The evidence offered here would
not have played a central role in Perez's defense, as it sought
to rebut a theory not asserted by the prosecution. Cal. Ct. App.
Opinion at 15. Moreover, other evidence illustrated Perez's
limited intellectual capacity. Id. at 17. Finally, the evidence
had very little probative value, as Perez's attorney had offered
it to prove absence of a master plan, but no master plan had been
asserted and no master plan was necessary to establish Perez's
guilt on the charges of forcible lewd acts, aggravated sexual
assault, and misdemeanor assault. Because a court could
reasonably conclude that these factors outweigh the apparent
reliability and understandability of the evidence, its exclusion
did not violate Perez's due process and Sixth Amendment rights.
Even if the exclusion of evidence infringed upon Perez's
constitutional rights, habeas relief would only be appropriate if
the exclusion had "substantial and injurious effect" on the
verdict. Brecht, 507 U.S. at 623. The California Court of
Appeal applied a harmless error analysis to determine that
exclusion of Perez's evidence did not substantially influence his
conviction. Cal. Ct. App. Opinion at 17. On collateral review, a
federal court should evaluate whether the state court's harmless
error analysis was objectively unreasonable. Medina v. Hornung,
386 F.3d 872, 878 (9th Cir. 2004). In this case, the California
Court of Appeal's harmless error analysis does not appear
objectively unreasonable. The breadth of evidence against Perez,
such as the victims' testimony and Perez's own admissions, show
convincingly that the jury would have convicted him despite any
evidence of impaired mental capacity. The evidence of Perez's
limited mental intellect to show an inability to plan or execute
repeated molestations undetected would not have been credited in
light of the evidence that Perez admitted in recorded telephone
call with Arlynn's mother to having committed about 12-15 lewd
acts against Arlynn and admitted in an interview with police
several dozen lewd acts against Arlynn. His description of the
events to police indicated that he was mindful to avoid detection
when he engaged in his lewd acts. See Cal. Ct. App. Opinion, p.
4. In other words, evidence that Perez wasn't theoretically smart
enough to engage in so many lewd acts undetected would not have swayed a
jury that also heard Perez's own admissions that he had in fact
engaged in many lewd acts, even though he had admitted dozens of
lewd acts rather than hundreds of lewd acts, and had done them
The California Court of Appeal's decision was not an
unreasonable application of, or contrary to, clearly established
federal law. The decision cited an appropriate Supreme Court
decision regarding a criminal defendant's constitutional right to
a meaningful opportunity to present a complete defense. Cal. Ct.
App. Opinion, p. 16 (quoting Crane v. Kentucky, 476 U.S. 683,
690 (1986)). The court's application of clearly established
federal law was reasonable. Perez therefore is not entitled to
relief on this claim.
B. Admission of Propensity Evidence Under California Evidence
Code § 1108
At trial, the prosecution introduced evidence of Perez's prior
sexual offenses against Anita, who testified that Perez had
molested her when she was about 7-8 years old, almost every time
he came to her house to visit her brother about once a month
for a year. Perez asserts that the admission of evidence of his
prior uncharged sex offenses under California Evidence Code
section 1108 violated his constitutional right to be free from ex
post facto laws and his constitutional rights to due process and
a fair trial.
California Evidence Code section 1101 provides, in relevant
part: "(a) Except as provided in this section and Section . . .
1108, . . . evidence of a person's character or a trait of his or
her character . . . is inadmissible when offered to prove his or
her conduct on a specified occasion."
California Evidence Code section 1108(a), states, in relevant
part, that "[i]n 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, if the evidence is not inadmissible
pursuant to Section 352."
California Evidence Code section 352 permits the court to
"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."
1. Ex Post Facto Claim
Perez contends that California Evidence Code section 1108 was
an ex post facto law that could not be applied to him. Section
1108 became effective on January 1, 1996, and section 1108
evidence was used to convict him of ten counts of committing lewd
acts on Arlynn that occurred in 1991-1995, and therefore predated
The U.S. Constitution provides that "No State shall . . . pass
any Bill of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts. . . ." U.S. Const., Art. I, § 10. In
Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), Justice Chase
gave the classic description of ex post facto laws:
I will state what laws I consider ex post facto
laws, within the words and intent of the prohibition.
1st. Every law that makes an action done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action. 2d. Every law
that aggravates a crime, or makes it greater than it
was, when committed. 3d Every law that changes the
punishment, and inflects a greater punishment, than
the law annexed to the crime, when committed. 4th.
Every law that alters the legal rules of evidence,
and receives less, or different testimony, than the
law required at the time of the commission of the
offence, in order to convict the offender.
3 Dall. at 390 (emphasis added); see Carmell v. Texas,
529 U.S. 513
, 537-39 (2000) (fourth Calder category remains valid).
The fourth Calder category prohibits both laws that lower the
burden of proof and laws that reduce the quantum of evidence
necessary to meet that burden. Cf. Carmell, 529 U.S. at 541.
However, it does not mean that a state may not make any change to
laws of evidence. For example, a change in a witness competency
rule did not violate the Ex Post Facto Clause; the changed rule
did not always run in favor of the state and did not necessarily
affect, let alone subvert, the presumption of innocence. See
Carmell, 529 U.S. at 533 n. 23, 546. "The issue of the
admissibility of evidence is simply different from the question
whether the properly admitted evidence is sufficient to convict
the defendant. Evidence admissibility rules do not go to the
general issue of guilt, nor to whether a conviction, as a matter
of law, may be sustained." Id. at 546; see also Hopt v. Territory of Utah, 110 U.S. 574, 589-90
(1883) ("Statutes which simply enlarge the class of persons who
may be competent to testify in criminal cases are not ex post
facto in their application to prosecutions for crimes committed
prior to their passage, for they do not . . . alter the degree,
or lessen the amount or measure, of the proof which was made
necessary to conviction when the crime was committed").
In analyzing Perez's claim, the California Court of Appeal set
forth the appropriate federal standard, listing the four
categories of ex post facto laws, identifying the fourth Calder
category as the category at issue and applying the leading
Supreme Court case of Carmell to Perez's case. The state court
determined that section 1108, while adding to the pool of
evidence which the jury could consider, did not lessen the
prosecution's burden to prove Perez's guilt beyond a reasonable
doubt. Cal. Ct. App. Opinion at 9 (citing People v. Fitch,
55 Cal. App. 4th 172, 186 (1997)). The appellate court also compared
section 1108 to the statute at issue in Carmell v. Texas, upon
which Perez's argument relied. Cal. Ct. App. Opinion, pp. 9-10.
The defendant in Carmell, like Perez, had been accused of
molestation, and asserted that a recently amended law violated
the ex post facto prohibition. Carmell, 529 U.S. at 516. Texas
had amended the disputed law, which had previously prohibited
sexual assault convictions upon the victim's uncorroborated
testimony, unless the victim had informed someone of the assault
within six months, to authorize conviction on the victim's
testimony alone. Id. at 516-517. By decreasing "the minimum
quantum of evidence required to obtain a conviction," the law
violated the ex post facto prohibition. Id. at 534. Carmell
noted that ordinary rules of evidence, unlike the Texas law at
issue, do not violate the Ex Post Facto Clause, because the
question of evidence admissibility differs entirely from whether
admitted evidence suffices to permit a conviction. Carmell,
529 U.S. at 1638-1640. The California Court of Appeal construed
section 1108 as a law of evidence admissibility as opposed to a
rule that determined whether admitted evidence suffices to permit
a conviction. Section 1108 merely increases the stock of
admissible evidence and does not lower the required "quantum of
evidence" or reduce the prosecution's burden of proof. Cal. Ct.
App. Opinion, p. 10
Section 1108 was enacted after several of the crimes occurred.
However, it did not lower the burden of proof for the prosecution or change the quantum of
evidence necessary to convict. The statute permitted the jury to
consider additional relevant evidence that was not excluded under
section 352 in determining whether the prosecution had met its
burden of proof. Perez has not shown that section 1108, on its
face or as applied in his case, altered the burden of proof of
the amount of evidence necessary to convict. Section 1108 changed
evidence admissibility rules, but that was permissible under
Carmell and did not run afoul of the Ex Post Facto Clause.
The California Court of Appeal's rejection of the ex post facto
claim was not "contrary to" nor "an unreasonable application of"
federal law. 28 U.S.C. § 2254(d)(1). Perez is not entitled to the
writ on this claim.
2. Due Process Claim
A state's criminal law (such as an evidence law pertaining to
criminal trials) does not violate the Fourteenth Amendment's 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, 43
(1996) (citation omitted). "It is not the State which bears the
burden of demonstrating that its rule is deeply rooted, but
rather [the criminal defendant] 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." Id. at 47 (citation and
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).
No published federal appellate court decision has yet reached
the constitutionality of California Evidence Code section 1108. However, section 1108 is
analogous to Federal Rule of Evidence 414, which governs the
admissibility of prior conduct evidence in child molestation
cases in federal court. The Ninth Circuit has rejected due
process and equal protection challenges to Rule 414, and its
reasoning guides this court's consideration of the very similar
California law. See LeMay, 260 F.3d at 1024, 1030. Rule 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." Fed.R.Evid. 414. Rule 414 does not violate due
process because Rule 403 (the federal analog to California
Evidence Code section 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. Id. 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 section 1108 functions in a similar
fashion to Federal Rule of Evidence 414. Section 1108 allows for
the introduction of evidence of prior sex offenses by a defendant
accused of a sex offense and is subject to section 352 which
excludes unduly prejudicial evidence. Like Rule 414, section 1108
does not pose a due process concern because the section 352
filter does not allow the admission of section 1108 evidence
which is so prejudicial as to preclude the right to fair trial
guaranteed by the Due Process Clause. Perez has not shown "that
the traditional ban on propensity evidence involves a
`fundamental conception of justice'" which is violated by section
1108. See LeMay, 260 F.3d at 1025. He thus has not shown that
section 1108, which allows propensity evidence in the limited
area of sex offense cases, on its face violates due process.
Section 1108 also did not violate due process as it was applied
in Perez's case. The prosecutor offered evidence of Perez's
crimes against Anita to show Perez's lewd intent regarding all
three girls, and to show his propensity to commit sex crimes
against pre-pubescent girls, as evidenced by the substantial
similarities in the three cases. The trial court rejected defense
counsel's argument that the evidence should be excluded as highly
inflammatory and unnecessary. Cal. Ct. App. Opinion, pp. 12. The state appellate court found
that the trial court had not abused its discretion in refusing to
exclude the evidence under section 352. The events were not too
remote in time because "the evidence showed an almost unceasing
pattern of molestations of very young girls, beginning with the
six-year-old-child [Perez] admitted molesting when he was a
juvenile, and continuing through the molestations of [Anita],
then [Arlynn] and finally his own daughter." Cal. Ct. App.
Opinion, p. 13. The fact that the evidence showed he had not been
punished for his uncharged offenses "may well be true; however,
it is but one factor to be weighed" and many other factors
favored admission. Id. at 13-14. "Given the high degree of
similarity between the girls' ages, the relationships of their
families to [Perez] and the furtiveness of the encounters, we
cannot say the trial court abused its discretion in finding the
evidence more probative than prejudicial." Id. at 14. Because
the jury could draw from the evidence of Perez's prior sex
offenses the permissible inferences that he had the propensity to
commit sex offenses against pre-pubescent girls and did commit
the sex offenses charged in the present case, the admission of
the evidence that he had committed sex offenses against Anita did
not violate Perez's right to due process. See Jammal v. Van de
Kamp, 926 F.2d 918, 920 (9th Cir. 1991).
A further reason Perez 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.
"[T]he 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. 62, 75 n. 5 (1991)] ('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), reversed on
other grounds by 538 U.S. 202 (2003).
C. The Jury Instructions Regarding The Prior Sex Offenses
Perez contends that his right to due process was violated
because the jury instructions could have been understood by a
jury to permit his conviction based solely upon the fact of his
prior sex offense and without finding each fact necessary to
support the conviction beyond a reasonable doubt.
The jury was given these instructions on the use of the prior
sex offenses evidence:
Evidence has been introduced for the purpose of
showing that the defendant engaged in a sexual
offense other than that charged in the case. [¶]
"Sexual offense" means a crime under the laws of a
state or of the United States that involves any of
the following: [¶] Any conduct made criminal by Penal
Code Sections 261, 269, 286(c)(2), 288(a), 288(b)(1).
The elements of these crimes are set forth elsewhere
in these instructions. [¶] If you find that the
defendant committed a prior sexual offense you may,
but are not required to, infer that the defendant had
a disposition to commit 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 or crimes 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 crimes. If you
determine an inference properly can be drawn from
this evidence, this inference is simply one item for
you to consider, along with all other evidence, in
determining whether the defendant has been proved
guilty beyond a reasonable doubt of the charged
crime. You must not consider this evidence for any
Within the meaning of the preceding instruction, the
prosecution has the burden of proving by a
preponderance of the evidence that a defendant
committed a sexual offense other than those for which
he is on trial. [¶] You must not consider this
evidence for any purpose unless you find by a
preponderance of the evidence that a defendant
committed the other sexual offense.
CT 467-468; CALJIC 2.50.01, CALJIC 2.50.1. The jury also was
instructed on the preponderance of the evidence standard, CT 468,
and was given the following standard reasonable doubt jury
A defendant in a criminal action is presumed to be
innocent until the contrary is proved, and in case of
a reasonable doubt whether his guilt is
satisfactorily shown, he is entitled to a verdict of
not guilty. This presumption places upon the People
the burden of proving him guilty beyond a reasonable
doubt. [¶] Reasonable doubt is defined as follows: It
is not a mere possible doubt; because everything
relating to human affairs is open to some possible or imaginary doubt. It is that state of the case
which, after the entire comparison and consideration
of all the evidence, leaves the minds of the jurors
in that condition that they cannot say they feel an
abiding conviction of the truth of the charge.
CT 469; CALJIC 2.90.
The California Court of Appeal summarily rejected Perez's claim
of instructional error, following the reasoning of People v.
Reliford, 29 Cal. 4th 1007, 1009 (Cal. 2003), which had
determined that the 1999 version of CALJIC No. 2.50.01 correctly
stated the law. Ct. App. Opinion, p. 11. The Reliford court had
found no reasonable likelihood under the instructions given that
the jury would conclude it could convict appellant of the current
offense solely because it found that he had committed a similar
prior sexual offense. See Reliford, 29 Cal. 4th at 1015-16.
To obtain federal collateral relief for errors in the jury
charge, a petitioner must show that the ailing instruction by
itself so infected the entire trial that the resulting conviction
violates due process. See Estelle v. McGuire,
502 U.S. at 71-72. It is beyond dispute that the Fourteenth Amendment's Due
Process Clause requires that a defendant be presumed innocent
until proven guilty, that he may only be convicted upon a showing
of proof beyond a reasonable doubt, and that the jury be properly
instructed that a defendant is presumed innocent until proven
guilty beyond a reasonable doubt. Gibson v. Ortiz,
387 F.3d 812, 820 (9th Cir. 2004) "Any jury instruction that `reduce[s]
the level of proof necessary for the Government to carry its
burden . . . is plainly inconsistent with the constitutionally
rooted presumption of innocence.'" Id. (quoting Cool v.
United States, 409 U.S. 100, 104 (1972)). So long as the trial court
instructs the jury on the necessity that defendant's guilt be
proven beyond a reasonable doubt, the Constitution does not
require that any particular form of words be used in advising the
jury of the government's burden of proof. See Gibson,
387 F.3d at 825.
In reviewing an ambiguous instruction, the court must inquire
whether a reasonable likelihood exists that the jury has applied
the challenged instruction in a way that violates the Constitution. See Estelle, 502 U.S. at 72 & n. 4; Boyde v.
California, 494 U.S. 370, 380 (1990).*fn4 A determination
that there is a reasonable likelihood that the jury has applied
the challenged instruction unconstitutionally establishes only
that an error has occurred, however. See Calderon v. Coleman,
525 U.S. 141, 146 (1998). 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, 507 U.S. at 637, before granting habeas relief. See
Calderon, 525 U.S. at 146-47.
The jury instructions given at Perez's trial did not
incorrectly describe the burden of proof or permit conviction
upon a standard less than proof beyond a reasonable doubt of
every element of the charged crimes. One of the challenged
instructions given in this case is a revised version of CALJIC
2.50.01 which includes the language: "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 crimes."
When viewed in light of the other instructions given by the
court, the revised CALJIC 2.50.01 given at Perez's trial made
clear that even if the jury found that Perez committed a prior
sexual offense by a preponderance of the evidence and drew the
inference that he was likely to commit and did commit the crimes
of which he was accused, that alone was not sufficient to prove
beyond a reasonable doubt that he committed the charged crimes.
There is no reasonable likelihood that the jury applied the
challenged instructions to convict Perez based on a preponderance
of the evidence or any standard below proof beyond a reasonable
The instructions used at Perez's trial were not the same as
those determined to be constitutionally infirm in Gibson v.
Ortiz, 387 F.3d 812. In Gibson, the jury was instructed with
the pre-1999 version of CALJIC 2.50.01 which did not tell the
jury that the inference it could draw from the prior sex offense
was not enough to prove guilt on the charged crime beyond a
reasonable doubt. The problem was compounded by the use of a
modified version of CALJIC 2.50.1 that stated the preponderance
of the evidence standard as the burden of proof for prior sexual offenses. The "interplay of the two instructions allowed
the jury to find that Gibson committed the uncharged sexual
offenses by a preponderance of the evidence and thus to infer
that he had committed the charged acts based upon facts found
not beyond a reasonable doubt, but by a preponderance of the
evidence." Id. at 822. The Gibson instructions, carefully
followed by the jury, would allow Gibson's conviction based on a
finding made on the unconstitutionally low preponderance of the
evidence standard. By contrast, Perez's jury instructions,
carefully followed by the jury, would not permit Perez's
conviction based on anything less than proof beyond a reasonable
doubt of all elements of the crimes charged. The California Court
of Appeal's rejection of Perez's claim was not contrary to or an
unreasonable application of clearly established federal law.
Perez is not entitled to the writ on this claim.
For the foregoing reasons, the petition for a writ of habeas
corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.
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