United States District Court, N.D. California
November 1, 2005.
GREGORIO TORRES, Petitioner,
J. BROWN, warden, Respondent.
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.
A. The Crimes
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
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 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).
A. Exclusion of Evidence
Torres claims that the trial court's exclusion of certain
evidence denied him his constitutional rights to due process, a
fair trial, and to present a defense. Torres complains that the
court improperly sustained objections to evidence that
purportedly showed ex-wife Esparza's state of mind: (1) evidence
from Torres' sister, Maria Montenegro, that Esparza "used to say
my brother was with Leticia [Ordaz]" when Torres was not at home;
(2) evidence that Esparza had threatened that "something was
going to happen to" Ordaz's daughter, (3) evidence that Javier
had told Montenegro that his mother had hit him because he
refused to telephone Ordaz, (4) evidence that Esparza told
Montenegro that she had asked her brothers to find Torres and
beat him up, (5) evidence that Esparza threatened to call police
on Torres if he left her, (6) evidence that Esparza had used
particular "curse words" against her son Javier, and (7) evidence
that Javier would say he was going to go eat because Esparza
would never give him food. The evidence and the trial court's
rulings are discussed in the background section above-quoted.
Torres argues that each statement was relevant to Esparza's state
of mind and was either admissible for non-hearsay purposes or
under the state of mind exception to the hearsay rule.
The California Court of Appeal rejected Torres' challenge to
the trial court's rulings excluding the evidence. The California Court of Appeal found that
the evidentiary rulings did not amount to federal constitutional
error and therefore the harmlessness of the errors was to be
analyzed under a less stringent standard applicable to
evidentiary errors of the non-constitutional variety. See Cal.
Ct. App. Opinion, p. 12. Specifically, the court determined that
the standard of People v. Watson, 46 Cal.2d 818 (1956), rather
than the standard from Chapman v. California, 386 U.S. 18
(1967), governed its analysis. Watson is comparable to the
standard in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), and
is less favorable to the petitioner than the Chapman standard.
See Bains v. Cambra, 204 F.3d 964, 971 (2000). However,
Chapman rather than Brecht is the correct standard of review
on direct appeal for alleged constitutional errors. The state
appellate court's rulings regarding harmlessness of the alleged
evidentiary errors thus do not receive deference under § 2254(d)
because that court did not apply the appropriate
The Due Process Clause does not guarantee the right to
introduce all relevant evidence. See Montana v. Egelhoff,
518 U.S. 37, 42 (1996). A defendant does not have an unfettered right
to offer evidence that is incompetent, privileged or otherwise
inadmissible under standard rules of evidence. See id. The
exclusion of evidence does not violate the Due Process Clause
unless "it offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental." Id. at 43 (quoting Patterson v. New York,
432 U.S. 197, 201-02 (1977)) (internal quotations omitted). The
defendant must establish that his right to have the jury consider
the excluded evidence in the case was a "fundamental principle of
justice." See id.; see also Chia v. Cambra,
360 F.3d 997, 1003 (9th Cir. 2004) (it is clearly established federal law
under AEDPA that when hearsay statement bears persuasive
assurances of trustworthiness and is critical to the defense, the
exclusion of that statement may rise to the level of a due
process violation). If an error is found, the court must consider
whether it "had substantial and injurious effect or influence in
determining the jury's verdict." Brecht, 507 U.S. at 637. The
error must have resulted in actual prejudice. Id.
When deciding whether the exclusion of evidence violates a
criminal defendant's rights to due process and to present a
defense, the court balances the following five factors: (1) the
probative value of the excluded evidence on the central issue,
(2) its reliability, (3) whether it is capable of evaluation by
the trier of fact, (4) whether it is the sole evidence on the
issue or merely cumulative, and (5) whether it constitutes a
major part of the attempted defense. Chia, 360 F.3d at 1004.
Applying Chia's five part-test to the excluded evidence shows
that Torres' constitutional rights were not violated. First, the
probative value of the statements regarding Esparza's
mistreatment and neglect of Javier were minimal because the
statements were only relevant to a collateral issue of Esparza's
state of mind. The excluded evidence was probative as to
Esparza's credibility but not as to Javier's personal credibility
and therefore was only indirectly probative on the central issue
of whether Torres committed the crimes. Second, the reliability
of the excluded evidence is questionable because the statements
were hearsay. Third, the trier of fact would have had some
difficulty evaluating the evidence because it was hearsay once or
twice removed e.g. "she said . . ." or "he said she said . . ."
and the declarant was not then on the stand to have his or her
demeanor evaluated by the jury. Further, the witness on the stand
through whom the hearsay would come in had a clear motive to help
defendant's case and criticize Esparza in doing so. Fourth,
Torres had already presented substantial evidence that Esparza
had reason to be biased against him based upon his relationship
with Ordaz, that Esparza appeared obsessed with his whereabouts
when he was not at home and would try to track him down, that
Esparza threatened Ordaz's daughter, and that Esparza mistreated
Javier in a number of ways.*fn2 The excluded evidence was
cumulative and far from the sole evidence presented on the issue
of Esparza's state of mind. Finally, although the excluded
evidence may have bolstered Torres' defense by undermining the
credibility of one of the prosecution's witnesses, none of the
excluded evidence went directly to whether he committed the offenses. The court did not exclude any
statements that Torres had not committed the crime or that
Esparza or Javier had fabricated these charges. The trial court's
rulings did not constitute a refusal to allow Torres to present
his defense, but merely rejected certain evidence concerning the
defense. The exclusion did not rise to the level of impairing
Torres' due process right or right to present a defense.
Even if the exclusion of the evidence was error, it did not
have a "substantial and injurious effect or influence in
determining the jury's verdict." Brecht, 507 U.S. at 637.
Esparza's mothering skills, mistreatment of Javier, and obsession
with Torres do not negate the validity of Javier's testimony. The
unfortunate reality is that a child may have both a bad mother
and a bad father. After extensive questioning by both the
prosecution and the defense, Javier's testimony established an
honest and believable portrayal of the two assaults by his
father. He described in detail the location, time, and manner in
which the sodomy occurred. See RT 98-116. The jury was able to
observe and evaluate Javier's demeanor and the validity of his
statements. The credibility of Esparza as a witness was not a
determinative factor in the believability of Javier's testimony.
Torres is not entitled to federal habeas relief on this claim.
B. Ineffective Assistance of Counsel Claim
Torres contends that his trial counsel rendered ineffective
assistance by failing to object to the prosecutor's misstatement
in closing argument that, during the second sodomy incident,
Torres put his hand over his son's mouth when his son screamed.
See RT 362, 364. There was no evidence that he placed his hand
over Javier's mouth during the second incident.
The Sixth Amendment right to counsel guarantees not only
assistance, but effective assistance, of counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984). The benchmark for judging
any claim of ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial process that
the trial cannot be relied upon as having produced a just result.
Id. The court considers whether counsel's performance was
deficient, i.e., whether it fell below an "objective standard of
reasonableness" under prevailing professional norms. Id. at
687-88. The court also considers whether the petitioner was
prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. Deference to
counsel's tactical decisions in closing presentation is
particularly important because of the broad range of legitimate
defense strategy at the time. See Yarborough v. Gentry,
540 U.S. 1, 5-6 (2003) (counsel's exclusion of some issues in closing
did not amount to professional error of constitutional magnitude
where issues omitted were not so clearly more persuasive than
those raised); United States v. Fredman, 390 F.3d 1153, 1157-58
(9th Cir. 2004) (affirming validity of "confession and avoidance"
tactic by counsel to avoid diminishing his credibility by arguing
a lost cause on part of the case). "[C]ounsel has wide latitude
in deciding how best to represent a client, and deference to
counsel's tactical decisions in his closing presentation is
particularly important because of the broad range of legitimate
defense strategy at that stage." Yarborough, 540 U.S. at 5-6.
Even if defense counsel believed the argument could be objected
to, counsel's decision-making must be evaluated in the context of
the available facts. Strickland, 466 U.S. at 690. If a defense
objection were overruled, the prosecutor's statement would have
been highlighted. It was a reasonable tactical choice to let the
statement stand, rather than highlight it with an objection. It
would not aid the defense to have the jury spending any extra
time thinking about the parties' particular reactions to the
sodomy. That is, defense counsel very reasonably could have
decided that it was unwise to call attention to whether Torres
put his hand over the boy's mouth when the boy screamed upon
being penetrated. Even if the objection had been sustained, there
probably would have been a brief moment of focus on whether there
was a lack of evidence to support the argument and the jury would
have been reminded that there was testimony that the boy screamed
but there actually wasn't testimony that Torres then covered his
mouth. These were crimes with ugly facts; it was very reasonable
for counsel to try to keep the jury from focusing on the
particulars of the crimes for the relatively minor point that
there was no evidence that Torres put his hand over the screaming
The defense theory of the case was that the sodomies did not
occur at all and that Javier was a pawn in his vindictive
mother's efforts to ruin her ex-husband's life. That was an
acceptable approach for defense counsel when his client faced these
difficult-to-defend charges (i.e., crimes alleged to have
happened on two unspecified dates in a relatively large time
frame and that occurred so many months before they were reported
that the absence of physical evidence was not probative that the
sodomies had not occurred). Defense counsel articulated his
"Javier was a pawn" theme repeatedly in his closing argument.
See, e.g., RT 388, 397, 400, 410, 412. Under the circumstances,
it was not helpful to the defense to object to a part of the
prosecutor's closing argument that would prompt the jury to focus
on the particulars of one sodomy. Counsel's non-objection was not
deficient performance and instead was consistent with his efforts
to try to keep the jury focused on the big picture that the
entire story was made up and that Javier was just a pawn in
Esparza's game. Like the "judicious selection of arguments for
summation," Yarborough, 540 U.S. at 8, deciding whether to
object to an error in the prosecutor's closing argument that
might detract from the chosen defense closing argument strategy
is a quintessential strategy question for defense counsel as to
which judicial review must be highly deferential and "doubly
deferential when it is conducted through the lens of federal
habeas." Id. at 8.
Furthermore, no prejudice resulted from the failure to object.
The record does not establish a reasonable probability that, but
for defense counsel's failure to object, the result of the
proceeding would have been different. First, the court instructed
the jury that "[s]tatements made by attorneys during trial are
not evidence." RT 452. The court also told the jury that, "[y]ou
must determine the facts from the evidence received in this trial
and not from any other source." RT 451. Second, had Torres'
counsel objected to the statement in question, the jury still
would not have perceived Torres' threat of force differently.
There had been evidence that Torres laid on top of Javier before
penetrating his anus. The jury would have found the elements of
force based on the evidence that the adult male forcefully pinned
the child to the ground by laying on top of him so that he could
not get up. RT 115. Regardless of whether or not Torres placed
his hand over Javier's mouth, Torres used force by laying on top
of Javier. The jury's decision would have remained the same and
the outcome of the proceedings would not have differed with an
objection. There is not a reasonable probability that the result
of the trial would have been different had the objection been
made. The state court reasonably rejected Torres' ineffective
assistance of counsel claim. The California Court of Appeal cited
the controlling case, Strickland, and followed Strickland's
guidance that "[t]actical errors are generally not deemed
reversible, and counsel's decision making must be evaluated in
the context of the available facts." Cal. Ct. App. Opinion, p.
13. The state court of appeal did not apply Strickland in an
objectively unreasonable manner in determining that counsel's
non-objection was not prejudicial. Accordingly, the application
of Strickland was neither contrary to, nor an unreasonable
application of, the clearly established federal law. Torres is
not entitled to the writ on this claim.
C. Jury Instruction Error Claims
Torres makes three jury instruction error claims. First, he
claims that the court violated his right to due process when it
failed to instruct the jury sua sponte on the definitions of
"force" and "duress" with regard to the four aggravated assault
charges. Second, he claims that the trail court violated his
right to due process when it erroneously instructed the jury that
it could find Torres guilty of sodomy by force if it found that
Torres had committed the act regardless of whether he had
threatened to retaliate. Third, he claims that his right to due
process was violated by the use of CALJIC 10.60, which he
contends improperly bolsters the victim's credibility.
1. Failure To Define Force And Violence
The first question is whether the trial court's failure to sua
sponte define the terms "force" and "duress" amounted to a due
process violation. The claim involves the first four counts of
the indictment. Counts 1 and 2 charged Torres with aggravated
sexual assault by committing sodomy by force. The jury was
instructed that it could not find Torres guilty of these crimes
unless it found that the sodomy "was accomplished against the
alleged victim's will by means of force, violence, duress,
menace, or fear of immediate unlawful bodily injury on [the
alleged victim] [or] [another person]." CT 186. Counts 3 and 4
charged Torres with sexual penetration by force. The jury was
instructed that it could not find Torres guilty of these crimes
unless it found that the sexual penetration "was against the will
of the alleged victim" and "was accomplished by the use of force, violence, duress, menace, or fear of immediate unlawful
bodily injury to the alleged victim." CT 189.
The California Court of Appeal rejected Torres' claim that the
trial court erred in failing to define force and duress, finding
that the error, if any, was harmless. See Cal. Ct. App.
Opinion, pp. 14-19. The prosecutor had identified the prosecution
theory of force and violence in her closing argument. She argued
that force for the sodomy and sexual penetration crimes was shown
by "the evidence that defendant was lying on top of J. and J.
tried to move but defendant did not let J. up or stop when J.
told him to stop." Id. at 18. And to show that duress existed
for the sodomy and sexual penetration crimes, "the prosecutor
defined duress as `a direct or implied threat of force, violence,
danger or retribution sufficient to coerce a reasonable person of
ordinary susceptibilities to perform an act which she or he in
this case would not otherwise have performed or acquiesce in an
act to which he would not otherwise have submitted.' She focused
on J.'s age, defendant's authoritative status as J.'s father,
defendant's acts of violence against J.'s mother, and evidence
that J. had witnessed defendant beating his mother." Id. at 18.
The California Court of Appeal further noted that the defense
theory was that none of the crimes had occurred, the whole story
was contrived by Esparza who was using her son as a pawn, and
that the detective lied when he said Torres confessed. The state
court explained that, with this defense, the definitions of force
and duress were "not material to the jury's resolution of the
pivotal issue of credibility." Id. at 19. Further, once the
child's testimony was accepted as credible, it established duress
due to the assailant and victim's familial relationship as well
as disparate sizes, even if the child's testimony was equivocal
regarding the use of physical force. Id. Duress was shown by
this evidence: Torres was the father of the 6-year old victim and
therefore in a position of parental dominance, physically much
larger than the victim, committed the crimes in the privacy of a
bedroom and when the victim's mother wasn't home, and exercised
physical control by laying on top of the victim; the victim was
unable to get away or insist that his father stop; and the victim
knew his father's capabilities because he had previously seen his
father threaten and hit his mother.*fn3 The court concluded that it
was "clear beyond a reasonable doubt the jury would have reached
the same verdict absent the alleged instructional error." Id.
A state trial court's failure to give a jury instruction does
not alone raise a ground cognizable in a federal habeas corpus
proceeding. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th
Cir. 1988). The error must so infect the trial that the defendant
was deprived of the fair trial guaranteed by the Due Process
Clause of the Fourteenth Amendment of the U.S. Constitution.
See id. Whether a constitutional violation has occurred will
depend upon the evidence in the case and the overall instructions
given to the jury. See Duckett v. Godinez, c. 745 (9th Cir.
1995), cert. denied, 517 U.S. 1158 (1996). An examination of
the record is required to see precisely what instructions were
given and what were refused and whether the given instructions
adequately embodied the defendant's theory. See United States
v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir. 1979), cert.
denied, 445 U.S. 966 (1980). 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 relief in habeas
The state court of appeal's rejection of Torres' claim was not
contrary to, or an unreasonable application of, clearly
established federal law. There is no clearly established federal
right to have the court sua sponte define terms in an
instruction to the jury. The instructions given, under the
circumstances of this case, did not so infect the entire trial
that the resulting conviction violated due process. As the state
appellate court noted, the defense theory was that the whole
story had been made up; the instructions on witness credibility
adequately covered this theory. See CT 161-170. Any definition
of force and duress would not have mattered to the success of
this defense. The instructions given that listed duress and force
among other ways to show the acts were against the victim's will
did not mislead or confuse the jury, especially in light of the
prosecutor's elaboration on these points in closing argument.
Torres is not entitled to the writ on this claim. 2. The Sodomy By Force Instruction
Torres contends that the jury was improperly instructed on the
crime of sodomy by force in that the instruction misled the jury
to believe Torres could be convicted of sodomy by force based on
a finding that he threatened to retaliate. There are different
kinds of sodomy against the victim's will and the instruction
here covered two kinds although Torres had only been charged with
one kind. Specifically, Torres had been charged with aggravated
sexual assault under § 269(c)(3) in that he committed sodomy by
"force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim," and he had not been
charged with committing sodomy against the victim's will by
"threatening to retaliate in the future," see Cal. Penal Code §
286(c)(3). See CT 64-65. The instruction given erroneously
allowed conviction under § 269(c)(3) or § 286(c)(3). The jury was
Defendant is accused in Counts 1 and 2 of having
committed the crime of unlawful sodomy in violation
of Section 286 of the Penal Code, sodomy by force,
violence, duress, menace and fear of immediate and
unlawful bodily injury. [¶] Every person who
participates in an act of sodomy when the act is
accomplished against the victim's will by means of
force, violence, duress, menace or fear of immediate
and unlawful bodily injury on the alleged victim or
another person, and there is a reasonable
possibility that the perpetrator will execute the
threat, is guilty of the crime of unlawful sodomy in
violation of Section 286 of the Penal Code. . . .
"Against the will" means without the consent of the
"Threatening to retaliate" means a threat to inflict
extreme pain, serious bodily injury or death.
In order to prove this crime, each of the following
elements must be proved:
One, a person participated in an act of sodomy with
an alleged victim; and
Two, the act was accomplished against the alleged
victim's will by means, force, violence, duress,
menace or fear of immediate and unlawful bodily
injury on the alleged victim or another person.
The California Court of Appeal found two errors in the
instruction and determined that both were harmless. Only the
first error is raised in Torres' federal habeas
petition.*fn4 The California Court of Appeal explained that the error was harmless under
Chapman as well as under the state law error standard because
the "instructions made clear that the jury had to find that the
acts of sodomy were accomplished against the alleged victim's
will by means of `force, violence, duress, menace or fear of
immediate and unlawful bodily injury on [J.] or another person.'"
Cal. Ct. App. Opinion, p. 23. The court determined that it was
"not reasonably likely that the jury misunderstood from the
erroneous instructions that `threats to retaliate' could
substitute for force, duress, etc. as defendant suggests. It
seems most likely the phrase, `and there is a reasonable
possibility that the perpetrator will execute the threat,' would
have been understood by the jury from its context as referring to
any threat of force or violence by which the sodomy may have been
The California Court of Appeal's rejection of the claim was not
contrary to, or an unreasonable application of, clearly
established federal law. Like the state court, this court sees no
reasonable likelihood that, applying the instructions given, the
jury could find sodomy by force based on a threat to retaliate.
The sentence structure in the instruction does not support
Torres' interpretation of it.
Torres argues that the evidence showed that any threat to
retaliate occurred after the sodomy and therefore it could not
have been the way he accomplished the sodomy. This argument is
beside the point, in light of the court's determination that the
jury instruction could not reasonably be interpreted to allow the
threat of retaliation as a means to find sodomy by force.
Moreover, Torres had not been charged with committing sodomy
against the victim's will by "threatening to retaliate in the
future," see Cal. Penal Code § 286(c)(3), so there would be a
different problem (i.e., conviction of an uncharged offense) than
a timing problem if the jury had found him guilty based on the
3. Witness Corroboration Instruction
Torres contends that trial court impermissibly bolstered the
credibility of Javier's testimony when it instructed the jury
that the sexual assault victim's testimony did not have to be
corroborated by other evidence. The instruction stated, in
pertinent part, that "[i]t is not essential to a finding of guilt of the crimes charged in counts 1, 2, 3, or
4 that the testimony of the witness with whom sexual activity is
alleged to have been committed be corroborated by other
evidence." CT 191; CALJIC 10.60.
The California Court of Appeal rejected Torres' claim
concerning CALJIC 10.60. The challenged instruction had to be
considered in the context of the many other instructions given
that touched upon the evaluation of witness testimony, and when
considered in that context, the use of the instruction did not
violate Torres' constitutional rights. See Cal. Ct. App.
Opinion, pp. 25-26.
As the state appellate court noted, the instruction correctly
stated the law, did not tell the jury to give the victim's
testimony greater credibility or weight, the California Supreme
Court had approved the use of the instruction in sex offense
cases, id. at 26 (citing People v. Gammage, 2 Cal. 4th 693,
702 (Cal. 1992)), and "the instructions taken as a whole properly
informed the jury of its fact-finding and the prosecution's
burden of proof and did not favor the victim." Cal. Ct. App.
Opinion, p. 26.
The jury instructions, taken as a whole, properly informed the
jury of its fact-finding function and the prosecution's burden of
proof and did not favor the victim. The jury was instructed in
the factors a jury may consider when determining witness
credibility; that jury members are the sole judges of the
believability of a witness and the weight to be given the
testimony of each witness; that a jury is not bound to decide an
issue of fact in accordance with the testimony of a number of
witnesses that does not convince it, as against the testimony or
other evidence, which is more convincing; and that a defendant is
presumed innocent unless his or her guilt is proven beyond a
The California Court of Appeal's decision was not contrary to
or an unreasonable application of, clearly established federal
law. Torres is not entitle to the writ on this claim.
D. Jury Nullification Instruction
Torres next contends that the use of CALJIC 17.41.1 at his
trial violated his rights to due process, to a unanimous jury and
to benefit from the possibility of jury nullification. CALJIC
17.41.1 instructs jurors to inform the court of other jurors'
misconduct and potential misconduct. Torres' claim must be rejected in light of the Ninth Circuit's
decision in Brewer v. Hall, 378 F.3d 952, 955-56 (9th Cir.
2004). There, the court determined that "no Supreme Court case
established that an instruction such as CALJIC 17.41.1 violates
an existing constitutional right." Id. at 956. Without such
Supreme Court authority, relief cannot be granted under the
standard in 28 U.S.C. § 2254(d).
E. Consecutive Sentences
Torres contends that he should have received concurrent rather
than consecutive sentences for his crimes because there was
insufficient evidence to support the decision to impose
consecutive sentences. The claim is one for the incorrect
application of state law and that alone cannot support federal
habeas relief. See Christian v. Rhode, 41 F.3d 461, 469 (9th
Cir. 1994); see generally Pulley v. Harris, 465 U.S. 37, 41
("A federal court may not issue the writ on the basis of a
perceived error of state law.")
For the foregoing reasons, the petition for writ of habeas
corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.
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