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November 1, 2005.

J. BROWN, warden, Respondent.

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



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 with defendant.
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 J.
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 tongue again.
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 pompis.
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 an erection.
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 Mastic Street.
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 in court.
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 objection.
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 back."
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 objection.
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 state law.


  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).


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