The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge
Petitioner is proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254(a). Petitioner challenges a conviction entered in the Tulare County Superior Court on December 10, 2001 for second degree murder, assault, and felony child abuse.
Additionally, Petitioner was convicted of two misdemeanor counts of child abuse. She is serving a sentence of twenty-five years to life imprisonment. Petitioner asserts that her federal constitutional rights were violated at her trial.
On November 21, 2003, the California Court of Appeal summarized the facts underlying the petitioner's conviction and sentence as follows:
Over the course of several years defendant and her husband, Gerald, adopted 12 children. The oldest child was a daughter, A., born in 1983. Joshua, J., Matthew, Paul, and Micah were the oldest boys, with birthdates from late 1984 until 1986. E., a son and the victim in count 4, was born in 1991. M., a daughter and the victim in count 5, was born in 1992. Mark was born in 1993. The deceased child, Rachel, was born in 1995 and had a twin sister, Rebecca. The youngest child was Benjamin, born in 1995.
On September 7, 2000, defendant drove all 12 children in the family van from Travis Air Force Base to Porterville, approximately a five-hour drive. Rachel did not finish her food fast enough when they were at Travis Air Force Base. This angered defendant, and she instructed A. to sit on Rachel. To do this, Rachel had to bend over at the waist, A. sat on top of her with her legs spread so that Rachel's head was between A.'s legs. A. and Rachel were sitting in the back seat of the van. Rachel was crying. Defendant told Rachel to shut up or she would sit on her. A. tried to shift her weight so she would relieve the pressure on Rachel and allowed Rachel to get up once so she could attempt to urinate in the container kept in the van for that purpose. Defendant had A. put a towel over Rachel's head so she would not garner any sympathy from the other children.
When the van arrived in Porterville, defendant took some of the children inside to see a doctor. J., Joshua, Rachel, M., E., and A. remained in the van. After the others had gone inside, A. got off of Rachel. A. noticed that Rachel was not moving. J. and Joshua moved Rachel to the front of the van and tried to get her to drink something. Joshua ran inside and got defendant.
Defendant ran out and began giving CPR to Rachel. A family nurse practitioner ran out and saw defendant giving CPR to Rachel. Defendant was frantic and asked him to do something. He began CPR. A doctor came out of the office and said the child needed to get to the hospital. Because the hospital was nearby, the nurse practitioner ran with Rachel to the emergency room.
Rachel arrived in the emergency room at approximately 5:50 p.m. Lisa Fitchpatrick, a licensed vocation nurse, took Rachel, started CPR, and ran with her to the trauma room. Rachel was not breathing and had no pulse. At the direction of the emergency room doctor, Fitchpatrick talked to defendant to find out how long Rachel had been without oxygen. Defendant told Fitchpatrick that she was inside the doctor's office when this happened. Her son ran in and said something was wrong with Rachel. He said to defendant that he had pulled a bag off of Rachel. After reporting this conversation, the doctor directed Fitchpatrick to ask defendant if Rachel had been sick or had had any seizures recently. Defendant said that Rachel had not had any seizures. Others in the family had been sick, but Rachel had not.
Doctors attempted to revive Rachel. At 6:22 p.m. Rachel's temperature was 103.4 degrees, at 6:33 p.m. her temperature was 105.6. She was pronounced dead at 6:33 p.m. On September 7, 2000, the outside temperature was 82.8 at noon, 89.1 at 5 p.m. and 87.7 at 6 p.m. While medical staff attended to Rachel at the hospital, the 11 other children went to the home of Andrea Ruckman, arriving at approximately 6 p.m. The children had attended the church where Andrea's husband was a youth pastor. Defendant called three times and spoke with J. and then A. Defendant also called Andrea and asked her to call Maureen Harold to come and pick up the children. Harold came by and picked up the children.
Detective John Hall contacted defendant and Gerald at the hospital. He asked where the children were; they refused to give any information about the children's location. The police eventually located the children and brought them to the police station after 2 a.m. One of the older boys said they could not talk until they had spoken to their mother. Defendant was brought into the room and she told the children they could speak to the officer. The children reported that Rachel had choked on a plastic bag in the van and denied that any abuse occurred in their home.
The emergency room doctor noted that Rachel had multiple scars and abrasions. While choking on a bag could account for cardiopulmonary arrest, such a scenario would also result in other findings that were not present. If Rachel could not breathe properly, because she was being sat upon, this could have resulted in a high temperature. This is because breathing is part of the regulatory mechanism for temperature. The doctor also noted that Rachel's vaginal opening was large and her hymen was notched. This is not normal for a five-year-old child. The emergency room doctor had worked on Rachel in November of 1999 when she was brought to the emergency room in an altered mental state. She had a subdural hematoma and was transferred to Valley Children's Hospital.
X-rays of Rachel's body were taken after her death. Dr. Frederick Young reviewed the X-rays. Rachel had a skull fracture. She had a broken left arm; the break was relatively fresh, having occurred within the previous two weeks. The fracture pattern of the arm was not typically associated with a fall, but was more consistent with a bending movement. Rachel had fractures at the base of the fingers on her right hand. These fractures were at least four to six weeks old. She had old fractures of her left hand fingers. She also had a fracture of the left fibula. An isolated fracture of the left fibula is not common and could have been caused from a hit or a kick. Dr. Young concluded that the combination of fractures were unexplained nonaccidental trauma.
Dr. Leonard Miller performed the autopsy on Rachel's body. Rachel weighed 38 pounds and was 41 inches tall. She had burn scars on the top of her left foot. She had scarring from a healed surgery on her head. She had multiple small red-tan dots on the soles of her feet. Samples from Rachel's feet were analyzed. It was Dr. Miller's opinion that Rachel had puncture wounds on the bottom of her feet. Dr. Miller concluded that Rachel died from positional asphyxia. Her body had been compressed, leading to hypoxia and cardiac irregularity and death. She would have been struggling to breathe and that would have generated heat in her body. There was also an element of dehydration. There were changes to Rachel's eyes that could have resulted from having her head downward and straining and struggling.
Dr. David Chadwick concluded that Rachel's death was not accidental and she was a victim of battered child syndrome. It was his opinion that the fracture to Rache's arm occurred within a week of her death when a blunt object struck her forearm. The fracture to her left fibula occurred as a result of a blow to the leg. It was two to six months old. The fractures of the fingers were all less than six months old and occurred by direct blows or bending of the fingers. Rachel had swelling of the left leg that occurred within two days of her death. Her prior head injury in November of 1999 was a result of shaken infant syndrome. The head injury occurred within 24 hours of when she was taken to the hospital. Rachel had burn scars on her chest, leg and feet. The burns on the right side of her chest were not consistent with a child pulling water off of a stove and onto herself. Rachel had ligature marks around her ankles that indicated she had been tied up. She had puncture wounds to the soles of her feet. Rachel had 22 distinct injuries, and it was Dr. Chadwick's opinion that there is no possibility these injuries could all be accidental.
Dr. Ronald Gabriel, a specialist in pediatric neurology and neuroimaging, testified that the November 1999 hemorrhage on Rachel's brain was massive. Because there was no scalp or bone injury there must have been an additional component of vigorous shaking to cause the injuries. If Rachel had fallen, she would have had a swelling of the skin on her head and almost certainly a fracture. The bleeding from her head injury would be accelerated if she performed jumping jacks after receiving the injury. Her head injury was not accidental.
In addition to testifying regarding Rachel's prior head injury, Dr. Gabriel stated that the prior head injury would not have affected Rachel's ability to regulate her temperature preceding her death. It was Dr. Gabriel's opinion that if someone cannot breathe properly, his or her body will become hotter. Being sat upon could reduce the ability to circulate blood to ventilate the lungs. It was very unlikely that a five-year-old would choke on a bag because a five-year-old is intelligent enough to pull the bag out. In addition, the bag-choking scenario does not explain Rachel's high temperature. If Rachel had suffocated she would have had a low body temperature, but with her ventilation and circulation compromised, she could develop a high temperature.
Deputy Sheriff Brian Clower investigated the head injury and burn on Rachel's hand in November of 1999. In addition to her massive head injury, Rachel had a burn on her right palm, one tooth was broken, her mouth had been bleeding, her left hand was discolored and she had a small cut on her right leg. Defendant explained that the burn happened when Rachel grabbed a food sample at Costco. The cut occurred when Rachel fell out of a wagon. Defendant said that the family, except Rachel who was in bed, was worshipping in the living room when she heard Rachel scream. When defendant arrived in the bedroom, Rachel was on the floor. Deputy Clower tried to interview the children but they were unavailable.
Defendant was interviewed on September 8, 2000, after Rachel's death and was asked about the prior injuries to Rachel. She stated that Rachel was burned when she pulled a pot of hot water off of the stove. Defendant said that Rache"s head injury was accidental. The marks around Rachel's ankles were explained as resulting from Rachel's socks being too tight. In addition, defendant stated that Rachel was accident prone.
Following the death of Rachel, all of the children were removed from the care of defendant and Gerald and placed in foster homes. The older boys (Joshua, J., Matthew, Paul and Micah) were returned to live with defendant and Gerald in October and remained in the home until February 20, 2001.
In late November of 2000, M. began reporting instances of abuse in the home. E. and M. were interviewed in December of 2000. The officer who interviewed M. looked for injuries to her.
M. had crooked fingers on both hands and 12 little pinpoint holes on the bottom of her feet. In addition, she had a scar on her back of two parallel lines. About the same time, A. revealed to her lawyer, child protective service worker, and psychologist her involvement in Rachel's death, as well as other instances of abuse in the home.
A. was charged with murder and pleaded to involuntary manslaughter in the juvenile court.
A doctor examined M., E. and A. There were scars on the hands of M. and E.M. said the marks on her fingers and hands were from being struck with a spoon. It was the doctor's opinion that the marks were consistent with M.'s explanation. The scars on
A.'s wrist were consistent with being cut with a knife. A. had 22 scars on her leg. The scars were consistent with A.'s revelation that she had been hit with a spatula. An attorney representing the children looked at M.'s feet and E.'s feet after the children came forward with their revelations regarding abuse. M. and E. each had marks on their feet consistent with the marks on Rachel's feet at the time of the autopsy. In addition M. had marks on her hands.
A. testified as a prosecution witness. Defendant and Gerald adopted her when she was approximately seven and a half years old. Defendant adopted her natural brother, Joshua, at the same time. There was no physical punishment in the house until A. was approximately 12 years old. Then she was spanked on the hands. She was not allowed to cry during the punishment or defendant would keep punishing her. When the family moved to Porterville the spankings expanded to the feet, knees, thighs, arms, shoulders, toes and stomach. Defendant would hit A. and the others with a "rod." A rod was a spoon. A. was home schooled and was required to do the bulk of the cleaning and chores around the house.
Another method of punishment defendant used on A. and the other children was "poking." Defendant would pour alcohol on the bottom of the child's feet. She would then poke a safety pin or other sharp object into the bottom of the foot. Sometimes she would wiggle the pin around. A. would sometimes have to hold the other children down while defendant poked them. Rachel was poked the most frequently because she did not eat her food. Sometimes defendant would poke the children in the mouth. A. held Rachel down when defendant poked her in the mouth. A. testified that Rachel was burned two separate times. Defendant told A. to boil water and bring it to her. A. did so. Rachel was on the bed, A. left. Rachel was burned on the stomach, thighs, hands, and feet. Defendant told A. that she put the hot water on Rachel.
A. recounted the night in 1999 when Rachel was taken to the hospital with a head injury. Rachel had been sent to her room and instructed to do jumping jacks because she did not finish her food. (A. testified that they were made to do jumping jacks as punishment, sometimes they were required to continue the jumping jacks for two hours at a time.) The remainder of the family was in the living room. Defendant sent A. to check on Rachel. Rachel was on the floor in the closet. A. swatted her and told her to continue her jumping jacks. A. returned to the living room. One to two minutes later Rachel screamed. They all ran in the room and found Rachel on the floor.
Another method of punishment used in the household was "plunging." A. testified that the bathtub would be filled up and defendant would force the children's heads down into the water. One time A. refused to be plunged. A. grabbed a pipe in the bathroom and held on. Defendant told J. to get a knife. He did and defendant cut A's arm to get her to let go of the pipe. A. bled a lot.
A. showed the jury her scar from the knife incident. Other forms of punishment included defendant's force-feeding the children when they did not finish their food or eat it fast enough. The children would be given time outs; the time-out position involved bending over from the waist and holding one's arms up behind one's back with their hands clenched together. They would have to do this for long periods of time. Defendant would also bend their fingers back. In addition, defendant would require one child to sit on another child as punishment. A. would help defendant administer punishments by holding the other children down when they were being punished. There was a rule in the house that A. could not be alone with other children because she was mean. This was known as the "[A.] rule."
A. testified regarding Rache's death. She stated that the family ate sandwiches at Travis Air Force Base. Rachel did not finish her food. Defendant told A. to sit on Rachel. A. sat on Rachel the entire trip from Travis Air Force Base to Porterville. One time Rachel got up to go to the bathroom in the bucket in the van. Rachel cried. A. would try to hold herself up to relieve pressure on Rachel. Defendant had Rachel put a towel over Rache's face so she would not garner sympathy from the other children. Defendant and A. both told Rachel to be quiet. When they arrived in Porterville defendant told A. to stay on Rachel. After defendant went inside the doctor's office, A. got off of Rachel.
After getting off of Rachel, A. moved up towards the front of the van to talk to Joshua and J. She noticed Rachel was not moving and was limp. They moved Rachel to the front of the van.
A. tried to give Rachel liquids but was unsuccessful. Joshua went inside to get defendant. Defendant and others came out to try and revive Rachel. Rachel was taken to the hospital.
Defendant told A. and the others to go to the home of the Ruckmans. Defendant called the Ruckmans three times and spoke to the children. She said, "this is big." She told A. a story to tell and to tell the boys to stick to the story. The story was that Rachel got a bag and put it in her mouth while A. and the boys were listening to music. Defendant also instructed A. to call the family attorney.
A. said she and the other children were taken to the police station in the early morning hours of September 8, 2000. The children would not talk to the police. Defendant came in and told the children they could tell the police the truth and everything would be all right. A. understood this message from their mother to mean they should tell the plastic bag story as they had been instructed to do earlier. A. testified she did not believe Rachel would die from getting sat upon.
Ten-year-old E. testified to the abuse in their home and the death of Rachel. E. stated that when the children got in trouble, they oftentimes were spanked with a "rod," which was a plastic or wooden spoon. Defendant hit him with the rod on his feet, knees, tummy, and hands. He would have to lay his hands out flat and she would hit him five or six times. It hurt. If E. cried, defendant would put a plastic bag over his face and it felt like he was going to die. A. would sometimes hit him with a rod after defendant told her to do so.
There were certain eating rules in the house. The smaller children had to finish their food before the big boys finished. If they did not finish their food according to the rules, they either got "poked" or "gurgled." Poking involved having a needle or safety pin poked into their feet. Sometimes A. would hold E. while defendant poked him. It hurt really badly and it would bleed. Sometimes E. was poked in the shoulder. He saw Rachel being poked. "Gurgling" involved getting into the bathtub with your clothes on. Your face would be positioned face up looking towards the faucet. Defendant would then turn the water on. It was very hard to breathe and made E. feel bad. If E. pulled away while he was being gurgled, defendant would call A. to hold E. down. In addition, you could not make noise while you were being gurgled or you would be gurgled longer. If A. would not hold E. down as she was told, she would get gurgled.
E. also testified regarding Rachel's burns and the day of her head injury. He stated that Rachel was burned when defendant told her to get in the hot bathtub. Rachel cried while defendant and A. sat her down in the water. E. stated that one time defendant got angry at Matthew and put his hand on the hot stove. In addition, E. testified that sometimes when he got in trouble he would have to stand in the corner bent over with his hands behind his back. It hurt.
E. did not see Rachel incur her head injury. According to E., everyone was in the living room except Rachel. Rachel was in her room doing jumping jacks because she had not finished her food. (E. testified that he and other children had to do jumping jacks as a form of punishment. They could not stop if they got tired or else they would get gurgled.) Rachel screamed and everyone ran in to see if she was okay. E. stated that Rachel fell off the bunk bed, even though he did not see the incident.
E. testified regarding the day Rachel died. He said that A. sat on Rachel on the way back from Travis because Rachel did not finish her food and this angered defendant. At the direction of defendant, A. sat on Rachel all the way to Porterville. Rachel was crying; this made E. sad but he did not say anything because he might get sat on. (A. had sat on him before and it hurt.) A. told Rachel to be quiet. Rachel stopped crying. Defendant and some of the other children went inside the doctor's office and A. finally got off of Rachel. Rachel spit up and was not moving. A. tried to give Rachel some water, but she would not drink it. Rachel took some orange juice from J. and then spit up. J. said "not again" and ran inside to get defendant.
Defendant tried to revive Rachel. Rachel was taken to the hospital and E. and the other children went to a friend's house. Defendant told them to be good. Defendant told E. to tell the police that Rachel suffocated on a bag. When the police talked to E ., he did not tell them the truth because he was afraid he would be gurgled. E. told the truth later when he knew he would not be sent back to defendant. On a visit with defendant at the jail, defendant whispered in E.'s ear, "Don't tell on me."
E. testified that A. was mean to Rachel; she would call her names and hit her. There was an "[A.] rule" that A. was not to be alone with the younger children.*fn1 E. showed the jury scars on his body from the various punishments.
Eight-year-old M. testified at trial. She stated that when she got in trouble she got a spanking with a metal rod. The spanking was administered by defendant and involved her feet, hands, back and stomach. If M. cried, defendant would put a plastic bag over her mouth. Sometimes her brothers would have to help with the punishment.
Other punishments were testified to by M., including poking, gurgling, doing jumping jacks, and having time outs in the bent-over position. M. also testified that if they did not finish their food, defendant would put gloves on and shove the food down their throat with two fingers. Additionally M. stated that A., Joshua, J., and Matthew sat on her. She said it hurt a lot and you can't move. Defendant would also pull their fingers back when they did something bad.
M. provided testimony regarding Rachel's head injury. She stated that defendant told A. to check on Rachel. A. checked on Rachel and returned to the living room. Rachel screamed. Rachel was in her room because she had not finished her dinner. She was doing jumping jacks as her punishment. M. testified that Rachel was taken to the hospital and hurt her head because she fell off the bed.
M. testified regarding the burns to Rachel. She said that defendant had water on the stove. A. took it to the bathroom and defendant put Rachel's hands in the pot of water. A. was helping and Rachel was screaming. After this Rachel could not move her hands; they were all "scrunched up."
Concerning the events leading to Rachel's death, M testified that A. sat on Rachel the entire trip from Travis Air Force Base to Porterville. Defendant told A. to sit on Rachel because Rachel did not finish her food fast enough. Rachel cried, and defendant told her she had better shut up or defendant would sit on her. During this trip M. also had to "go down." M. stated that going down involves assuming the same position that Rachel was in when A. was sitting on her; the only difference is that no one sits on you.
After they arrived in Porterville, Matthew, Rebecca, Micah and Paul went inside with defendant. A. got off of Rachel. J. and Joshua found that Rachel was not breathing. They took her to the front seat and tried to give her water. Joshua went inside and got defendant. Defendant tried to get Rachel to breathe. ...