The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Gregorio Torres seeks a writ of habeas corpus under
28 U.S.C. § 2254. For the reasons set forth below, the petition for a writ of
habeas corpus is denied.
Torres' conviction stems from incidents on two different days
when he allegedly sexually assaulted his 6-year old son. The
evidence of the crime was described in the California Court of
Appeal's opinion. That court's lengthy description of the family
circumstances and the crimes are repeated here because most of
Torres' claims pertain to his defense theory that the charges
were fabricated by his ex-wife who used their son as a pawn to
make the charges and ruin her ex-husband's life. Manuela Esparza testified that defendant [Torres] was
her former husband and together they had a son, J.
[Javier], who was born in January of 1992. For about
four to five months during 1998, the three of them
lived together in a rented room in a house on Mastic
in San Jose. Subsequent to the Mastic house, they
lived in a rented room in a house on Alma in San
Jose. Esparza testified that the last time she had
lived with defendant was January 1, 1999.
Esparza recalled that, when J. was six years old, he
developed a rash on his feet and hands and she took
him to the doctor. She was given some cream and it
was her job to apply the cream to J.'s rash. She
indicated that J did not have a rash or other problem
on his bottom or genital area while they were living
Esparza testified that her son had told her that "his
father had stuck his penis in his anus." J. told her
this information when she and J. were living with her
brothers. Esparza testified that in January 2000,
which she first said was about two or three months
after J. had revealed he had been sodomized, she took
J. to a doctor and the doctor reported it to police.
Esparza explained the delay occurred because she did
not have any insurance for J., did not have the money
to pay for the visit, and had not paid an earlier
doctor's bill. Later at trial, she indicated that J.
had told her about being sodomized earlier than she
had previously testified and she had already known
that information when she returned to get her mail
from the Alma house sometime around mid-1999. At that
time, she had told Avelino, from who they had rented
the room in the Alma house, that defendant had abused
Esparza recalled that, when the three of them lived
together, she normally worked 8:00 a.m. to 4:30 p.m.
on weekdays and 9 a.m. to 5:30 p.m. on Saturdays.
Defendant worked from about 6:00 p.m. to 2:00 a.m.
Defendant took care of J. while Esparza was working.
Esparza admitted to being very upset or angry with
defendant for past domestic violence problems, for
making her take care of his daughter by another
woman, for giving that daughter things she wanted
while impliedly denying things to J. and for what he
had done to J. Esparza testified that defendant had
hit her "[l]ots of times" and had been arrested twice
for hitting her. She stated that J. saw defendant hit
her and was scared. Defendant also spanked J. and hit
J. with a belt.
J. testified through a Spanish interpreter that, at
the time of trial in February 2001, he was nine years
old. He identified defendant as his father. When
asked if his father ever did anything to him that he
did not like, J. testified that defendant put "his
pee-pee in [J.'s] pompis" and that it happened
"[m]ore than one time." J. indicated that it happened
during the day in the room where he lived with his
mother and father at the house on Mastic while his
mother was working and not at home.
Although J. responded "I forget" to many questions,
he recalled that the first time it happened he was
lying down on his belly. He testified that his father
took off J's clothes at some point and, when his
father put his pee-pee in his pompis, it felt bad and
hurt. J. testified that he tried to get away from his
father. J. recalled that, after his father put in his
pee-pee, his father put his finger which had cream on
it, "inside the part of [his] pompis where [he goes]
pooh-pooh from." He remembered that it felt bad and
hurt but it hurt more when he put in his "pee-pee."
J. indicated that he told his father not to do it
when it hurt but his father did not stop.
According to J., after the incident, his father
threatened him by saying he would kill J.'s mom if he
told anybody and this threat scared him and so J. did
not tell anybody. J indicated that he had previously
seen his father hit his mother, which had scared him. J. testified that a second incident occurred during
the day in their room at the same house when his
mother was working and not at home. His father again
took off J.'s clothes. J. stated his father was on
the floor with him. J. indicated that his father
again put his "pee-pee" inside the part of J.'s
"pompis" from which J. went "pooh-pooh" and it felt
bad and hurt. J. testified that his father was on top
of him and he could not get away because his father
was heavy. He indicated that his father again put his
fingers, with cream, inside the part of his "pompis"
from which he goes "pooh-pooh."
J. was asked, "when your father was doing this to
you, putting his pee-pee in your pompis, do you
remember ever screaming?" J. answered, "Yes." When
then asked what his father did when he screamed, J.
responded, "He got off of me because the police was
coming." According to J., his father sent him to the
bathroom while the police were there and the police
"checked out the house and then they left." J.
testified that his father told him not to tell
anybody. J. remembered telling Detective Morales that
his father threatened to cut out his tongue if he
ever told and confirmed that his father said that the
second time. J. also testified that he remembered
telling the detective that on some occasion he had
stuck out his tongue at defendant and defendant
threatened to cut off his tongue if J. stuck out his
J. testified that the last time he lived with his
father was before his father was taken away by
police. This occurred when his father hit his mother
and his mother called the police. After they moved to
his uncle's home, J. told his mother what his father
had done. He told his mom because he knew his dad was
in jail and could not hurt him.
On cross-examination, J. indicated that he remembered
he had previously said the incidents occurred at the
house on Alma Street but on redirect examination
evidence came out that J. had testified the first
time without being shown pictures of the houses where
he had lived and he had been thinking of the Mastic
house when he spoke to Detective Morales and when he
testified at the preliminary hearing. J. also stated
that defendant "pushed" his "pee-pee" into his
Linda Cook, who worked in the crime analysis unit of
the San Jose Police Department, testified regarding a
record of a 911 call from the Mastic Street residence
that was received at 4:40 p.m. by the San Jose Police
Department on July 11, 1998. The records indicate
that an officer was dispatched, he arrived at 4:43
p.m., and the call was cleared at 4:47 p.m. as
"unfounded." The records did not show any other
dispatch call in 1998 to the Mastic address.
Erick Enderle, a San Jose police detective, testified
that he interviewed defendant on May 10, 2000. He
recalled asking defendant if he had ever touched his
child in an inappropriate manner. Enderle testified
that defendant initially became quiet and appeared
nervous. He was silent for a few moments and then
defendant said, "`If you think I'm guilty, then I'm
guilty.'" According to Enderle, after another brief
pause, defendant stated "`I did it.'" Defendant
indicated that it had occurred on an unknown date in
1998 and recalled that he had been lying in bed with
the victim and he "had to apply a lotion or cream of
some sort to the victim's buttocks area due to a rash
that the victim had." According to Enderle, defendant
had admitted that "after he applied the cream, that
he placed his [penis] into the victim's butt."
Enderle testified that defendant had said that the
child screamed, he then stopped, and they both went
to sleep. Enderle also testified that defendant had
admitted to lowering the child's underwear and having
Carl Lewis, a criminal investigator for the District
Attorney's office, testified that he met with J. on
December 29, 2000 for the purpose of identifying the
location of the reported incidents. After Lewis took
J. to the general area, J. pointed out the house on
Alma and then directed Lewis to the house on Mastic
Street. J. told Lewis that the two incidents with his father occurred at the house on
Leticia Ordaz testified that she began living with
defendant during 1994 while his wife was living in
Mexico and together they had a little girl, C., who
was five at the time of trial in February 2001.
According to Ordaz, they stopped living together in
1996. She indicated that defendant continued to see
his daughter after they separated and would pick up
C. from Ordaz's home as many as three days a week.
She recalled that J. appeared happy when defendant
brought him to her home and, during 1998, J. appeared
to be happy around his father.
Ordaz testified that Esparza telephoned Ordaz's
sister-in-law's house. Esparza told Ordaz's
sister-in-law that defendant had suffered an accident
and Ordaz testified that she had run to answer the
call. Esparza then asked Ordaz where defendant was.
Ordaz stated that Esparza was aggressive and used bad
words. The court sustained a hearsay objection when
defense counsel asked Ordaz to relate the particular
words. Ordaz also testified that Esparza had made
threats toward her daughter. After eliciting
testimony that Ordaz felt uncomfortable because of
threats made toward her daughter, defense counsel
asked whether Esparza had made the threats. Ordaz
replied, "Saying that something was going to happen
to my little girl." The court sustained a nonspecific
objection to Ordaz's nonresponsive answer.
Maria Montenegro, defendant's sister, testified that
she had lived with defendant and Esparza during 1997
and had stayed there about a year. Montenegro
indicated that defendant's relationship with J. was
"good." She stated that J. "would always follow
[defendant] more than he would follow [Esparza]."
Montenegro recalled that Esparza was "obsessed" with
defendant and was concerned he was with Ordaz
whenever he went out. According to Montenegro,
Esparza would "dedicate" herself to looking for
defendant or call defendant on his beeper. Montenegro
indicated that Esparza would sometimes just disappear
and leave J. in the house with her. At one point
during Montenegro's testimony, she stated that
Esparza "used to say my brother was with Leticia
[Ordaz]" when defendant was not there. The court
sustained a hearsay objection.
Montenegro recalled an occasion when Esparza's
bothers came to the house and were waiting for
defendant to arrive. When she testified that Esparza
"called her brothers because she wanted her brothers
to go out and look for my brother and beat him up,"
the court sustained a "speculative" objection and
told the jury to disregard Montenegro's testimony.
When she testified that Esparza told her that the
brothers were looking for defendant, the court
sustained a "hearsay" objection and told the jury to
disregard Montenegro's testimony.
Montenegro testified that Esparza treated J. "very
badly" and "[t]here were times when she would hit him
or would say ugly things to him." Esparza would call
J. "lazy" and say "he was a beggar and lazy like his
father . . . she didn't want to see him." According
to Montenegro, when defendant was not at home,
Esparza "would always mistreat the child and would
hit him," "[s]he wouldn't tend to him," and "[s]he
wouldn't feed him."
Montenegro testified that J. "was always say[ing]
that he was going to go eat because her [sic]
mother would never give her [sic] food." The court
sustained a hearsay objection and told the jury to
disregard the testimony. The court also sustained a
hearsay objection to her testimony indicating that,
once after J. had come out of the bath, J. asked
Esparza, "`Give me my clothes, Mommy.'" Montenegro
testified without objection that Esparza "always had
a bad reaction with everything [J.] would ask her,
especially when [defendant] was present." Montenegro
testified that Esparza would make derogatory remarks
toward J. and use curse words. However, the court sustained
a hearsay objection and directed Montenegro not to
answer when she was asked to repeat the curse words
Montenegro testified that, during 1998, defendant
would bring J., for whom he was caring, to her house.
Sometimes defendant would also bring C., defendant's
and Ordaz's daughter. Montenegro was able to observe
defendant, J. and C., interacting and socializing.
Montenegro stated she was aware that there were
problems of domestic violence between Esparza and
defendant and defendant had gone to jail for striking
Esparza. She indicated that she had lived with
defendant and Ordaz when she, Montenegro, came to the
United States from Mexico and she had not seen any
domestic violence between defendant and Ordaz.
Montenegro was asked whether she remembered receiving
a telephone call from J. in 1998 during which he said
that his mother, Esparza, had hit him because he
refused to telephone Ordaz and she answered
affirmatively. The People then objected on the
grounds of hearsay and the court sustained the
Defendant testified he moved with Esparza and J. to
Mastic Street in April of 1998 and lived there for
about four months. He then moved with them to West
Alma. Defendant recalled that he worked nights and
Esparza worked days during the period they lived in
the houses on Mastic and Alma. He took care of J.
while Esparza was at work.
Defendant testified at one point that he "would spend
most of the day with Leticia," with whom he admitted
having a relationship while Esparza was in Mexico. He
indicated that during the day he would be at
Leticia's house with J. and C. He also testified at
another point that he slept at home all day and J.
played on the patio. He indicated that sometimes he
would leave the kids with his sister and go with his
friends to play football.
Defendant acknowledged he and Esparza got into a lot
of arguments, although he indicated the fights arose
because she hit J. Defendant admitted that he used to
physically strike Esparza and had been twice
convicted for hitting her. According to defendant, J.
never saw him hit Esparza. Defendant admitted hitting
J. one time and stated that the incident occurred in
the Mastic house when J. stuck out his tongue at
defendant after being told to do something. Defendant
acknowledged he "just spanked him one time on the
Defendant testified that a detective who interviewed
him did not read him his Miranda rights. Defendant
recalled being asked a number of times whether he had
put his penis in J.'s anus and denying it each time.
However, he testified that he had acknowledged to the
detective that he had grabbed his son's testicles.
Defendant asserted that he never confessed to having
put his penis into his son's anus.
When asked why he would believe that Esparza would
tell J. to make these accusations against him, he
started to answer, "Yes, because she told me that if
I ever left her " The court then sustained a hearsay
objection and told the jury to disregard the
testimony following "yes." When defense counsel asked
defendant whether Esparza threatened to call the
police on him, the court sustained a hearsay
Cal. Ct. App. Opinion, pp. 2-9.
B. Procedural History Following trial by jury in Santa Clara County, Torres was
convicted of four counts of aggravated sexual assault of a child
under the age of 14, and one count of dissuading or attempting to
dissuade a witness "by force or by an express or implied threat
of force or violence." He was sentenced to 63 years in prison.
The California Court of Appeal affirmed the conviction and the
California Supreme Court denied review.
Torres then filed this action. In his federal habeas petition,
Torres asserted the following claims: (1) the trial court's
exclusion of evidence violated Torres' rights to present a
defense and to due process, (2) Torres received ineffective
assistance of counsel when his attorney failed to object to the
prosecutor's improper argument, (3) the jury instructions
violated his right to due process in that (a) the trial court
erroneously failed to define force and duress in the aggravated
sexual assault jury instructions, (b) the instructions regarding
sodomy by force were misleading, and (c) the instruction on
victim-witness corroboration was improper, (4) his right to due
process and to a unanimous jury was violated by the use of CALJIC
17.41.1, and (5) his consecutive sentences are not allowed under
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 the proper venue because the challenged conviction
occurred in Santa Clara County, California, within this judicial
district. 28 U.S.C. §§ 84, 2241(d).
Prisoners in state custody who wish to challenge collaterally
in federal habeas proceedings either the fact or length of their
confinement are required first to exhaust state judicial
remedies, either on direct appeal or through collateral
proceedings, by presenting the highest state court available with
a fair opportunity to rule on the merits of each and every claim
they seek to raise in federal court. See 28 U.S.C. § 2254(b),
(c). The parties do not dispute that state court remedies were
exhausted for the claims asserted in the petition. STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus
"in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation
of the constitution or laws or treaties of the Unites States."
28 U.S.C. § 2254(a). The petition may not be granted with respect to
any claim that was adjudicated on the merits in state court
unless the state court's adjudication of the claim: "(1) resulted
in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d).