FINDINGS AND RECOMMENDATIONS
Petitioner Jarey Stewart is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Stewart attacks his conviction for four counts of violating California Penal Code § 288 and one count of violating California Penal Code § 269 in the Sacramento County Superior Court, Case No. 00F08190.
Mr. Stewart raises the following claims:
A. He was not present for all critical stages of his trial;
B. The trial court violated his right to counsel and self representation;
C. The trial court violated his right to counsel for sanity phase;
D. The county jail violated his attorney-client confidentiality;
E. There was insufficient evidence to support conviction under § 269;
F. The trial court improperly refused his proposed jury instruction;
G. The trial court failed to clarify the insanity instruction;
H. The trial judge improperly imposed consecutive terms;
I. Improper imposition of restitution; and
J. Ineffective assistance of appellate counsel.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that Mr. Stewart's petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
The offenses charged in this matter occurred in September and October 2000. At the time, defendant was living with Evelyn S. and her two daughters, 10-year-old S. and four-year-old M. Defendant was 43 years old and is M.'s father.
On September 3, 2000, while Evelyn was away at work, defendant told the girls to take off their clothes while he videotaped them. He continued to videotape the girls as they ran around the house and later took a bath. At one point on the video, defendant tickled S., touching her breasts and her buttocks. At another point, defendant forced M. to sit on his lap. Both defendant and M. were naked. Defendant told the girls not to tell their mother about the videotape, because it was going to be a surprise for her.
On October 1, 2000, Evelyn was again away at work and defendant and S. were in defendant's bedroom watching television.
M. was asleep in her room. Defendant told S. to take off her clothes in an "urging" voice and, after she did so, he told her to lie down and began rubbing lotion on her. She obeyed because she was scared and thought defendant might hit or do something else bad to her. Defendant told S. to relax, that he always did this to her mother. Defendant rubbed her arms, legs and chest. Later, defendant began licking her vagina. After about five seconds, S. began pushing defendant's head away. Defendant continued to orally copulate her for two or three minutes; she told him three times to stop.
Defendant then told S. to take a shower. She did so and when she stepped out of the shower, she found defendant in the bathroom with her. Defendant told her that if she did not tell her mother what he had done, he would buy her any compact disk she wanted; she declined. Defendant then asked if he could rub lotion on her again, but she said no. She then put on her clothes and went to sleep.
The next morning, S. told her mother what had happened. Evelyn asked defendant what he had done and defendant responded, "It just happened." Evelyn asked defendant if he wanted to spend the rest of his life in prison and he asked her to "just let [him] go." Evelyn reported the matter to the police. While at the police station, Evelyn called defendant at home and asked him about the incident. The telephone conversation was recorded and later played to the jury. During the conversation, defendant admitted licking S.'s vagina and telling her that he did this to her mother. Defendant said this was the only time he did it and that he was ashamed.
Two weeks after calling the police, Evelyn discovered the videotape that defendant had made of the girls on September 3. Portions of the tape were played to the jury.
Defendant was charged with one count of aggravated sexual assault (Pen.Code, § 269, subd. (a)(4)), one count of lewd and lascivious conduct (Pen.Code, § 288, subd. (a)), and one count of aggravated lewd and lascivious conduct (Pen.Code, § 288, subd. (b)) in connection with the October 1 incident with S. He was charged with two counts of lewd and lascivious conduct in connection with the September 3 taping. Defendant was also charged with two prior serious felony convictions.
Defendant was found competent to stand trial and entered pleas of not guilty and not guilty by reason of insanity. During the initial stages of the proceedings, defendant requested to be permitted to represent himself with co-counsel. The court denied the request. Defendant then elected to represent himself and asked to have counsel appointed in an advisory role. The court denied this request as well, but ordered stand-by counsel for defendant.
At the guilt phase of the proceedings, defendant testified on his own behalf, explaining that during the September 3 taping, he did not intend to appeal to the sexual desires of either himself or the girls. Regarding the October 1 incident, defendant testified that he had taken several pain medications that day. He said he was a nurse and had been trained to give massages. He massaged S. as he had been trained to do. After defendant finished the massage, he sat down at the end of the bed. He then heard Evelyn's voice say "go ahead," which is what she said when they were going to have sex. Defendant started to orally copulate S., thinking she was Evelyn. It was not until defendant heard S. say stop that he realized who she was. He said to S., "You tricked me. How did you do that?"
Defendant also presented the testimony of a registered nurse regarding the side effects of the various medications defendant claimed to have taken.
Defendant was convicted on all counts. The prior conviction charges were then tried to the jury and were found true.
At the sanity phase, defendant presented the testimony of a nurse at the county jail, who had written a report indicating defendant had obvious psychological problems. She further clarified on the stand that defendant had "behavioral problems." Dr. Janice Nakagawa testified that defendant suffered from a "personality disorder," but that defendant knew what he was doing at the time and could tell right from wrong and predict the consequences of his actions. Dr. Shawn Johnston testified that defendant suffers from a character flaw that causes him to make trouble for others or himself. However, according to Dr. Johnston, none of these character flaws would have kept defendant from understanding what he was doing or from distinguishing right from wrong. However, neither of these psychological experts was qualified to assess the effects on defendant of the several medications that he claimed to have taken at the time of the October 1 incident. Defendant again testified on his own behalf, indicating that he had signs and symptoms of temporal lobe epilepsy, schizophrenia, and multiple personality complicated by medications. Defendant testified that he "can sometimes catch glimpses of ghosts when they come" because he is "hypersensitive, kind of like a person with ESP." He indicated that he has "shown the signs and symptoms of a person with severe depression which may be characterized by bipolar disorder or manic depression." Defendant considered himself insane in October 2000 because his perception of reality was different from that of others. He explained that he went into a "dream-like state" about an hour before the molestation as a result of the medications he had taken.
The jury found defendant sane with respect to all five counts.
June 3, 2004 opinion of the California Court of Appeal, Third Appellate District, case no. C040094 at 2-5. A jury found Mr. Stewart guilty on all counts. Id. at 5.
B. State Appellate and Habeas Corpus Proceedings
In this matter the number and history of appellate review and habeas corpus proceedings are numerous and extremely complicated. Proceeding chronologically, Mr. Stewart filed a notice of appeal on December 21, 2002. CT at 1101. On August 4, 2003, during the pendency of that appeal, Mr. Stewart filed a habeas petition with the California Court of Appeal. Answer, Ex. 4 at 3. That petition was denied on August 7, 2003.
On September 24, 2003, the Sacramento County Superior Court denied a previously filed petition.*fn1 On October 17, 2003 Mr. Stewart filed another habeas petition with the California Court of Appeal. Answer, Ex 6 at 3. That court denied that petition on October 30, 2003. On June 3, 2004, the California Court of Appeal affirmed Mr. Stewart's convictions but remanded the matter for re-sentencing. Answer, Ex. 7. Mr. Stewart then filed a petition with the California Supreme Court on July 23, 2004.
On May 13, 2005, after Mr. Stewart was re-sentenced, he filed another notice of appeal. CT 281-283. On June 8, 2005 the California Supreme Court denied Mr. Stewart's July 23, 2004 petition. On June 23, 2005, Mr. Stewart filed a writ of habeas corpus in the Sacramento County Superior Court. That petition was denied on August 16, 2005. Answer, Ex. 7 at 46.
On September 12, 2005, Mr. Stewart filed a habeas petition in the California Court of Appeal. That petition was denied on September 15, 2005. On February 27, 2006, the California Court of Appeal decided Mr. Stewart's May 13, 2005 appeal. Answer, Ex. 9 at 8-14.
On March 8, 2006, Mr. Stewart filed a petition for review of the California Court of Appeal's February 27, 2006 decision. Id. The California Supreme Court denied that petition on May 10, 2006. Answer, Ex. 10. Mr. Stewart filed this federal petition on September 7, 2006.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. SeePeltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. SeeEstelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues denovo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). SeeLindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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). SeealsoPenry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
V. DISCUSSION OF CLAIMS*fn2
A. Lack of Presence For All Critical Stages
Mr. Stewart claims the trial court violated his right to be present at all critical stages of his trial. Specifically Mr. Stewart claims that on August 13, 2001 the trial court appointed two psychologists to evaluate him as a result of his plea of not guilty by reason of insanity. Petition at 4. Mr. Stewart claims that on August 14, 2001, the trial court appointed different psychologists at a hearing outside his presence. Id.
In rejecting this claim, the Sacramento County Superior Court stated:
Petitioner fails to cite any authority supporting the proposition that the appointment of one particular psychologist over another, when the first-appointed psychologist is unavailable, for purposes of examination regarding an insanity plea, is such a proceeding at which his presence is required. Nor does petitioner show that he ever objected to the substitution of the appointment outside of his presence or that he sought appointment of a different psychologist that was denied; not having objected he waived the matter for purposes of appeal, thus his appellate counsel was not ineffective in failing to raise the issue on appeal. Regardless, petitioner fails to demonstrate any prejudice from the ex parte substitution appointment...
August 16, 2005 opinion of the Sacramento County Superior Court, case no. 05F05709.
Under federal law, a criminal defendant charged with a felony offense has a fundamental right to be present at every stage of the trial. Illinois v. Allen, 397 U.S. 337, 338 (1970). See also Kentucky v. Stincer, 482 U.S. 730, 745 (1987) ("a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure"). This right derives from the Confrontation Clause of the Sixth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments. United States v. Gagnon, 470 U.S. 522, 526 (1985). However,"th[e] privilege of presence is not guaranteed 'when presence would be useless, or the benefit but a shadow.'" Stincer, 482 U.S. at 745 (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07 (1934)). See also Gagnon, 470 U.S. at 527 (defendants' absence did not violate the Due Process Clause where their presence was not needed to "ensure fundamental fairness" and they could not have added to or gained from being present at the conference); Campbell v. Rice, 408 F.3d 1166, 1172-73 (9th Cir. 2005) (violation of petitioner's due process rights by his exclusion from private in-chambers hearing where the trial court concluded that his attorney did not have a conflict of interest was harmless error). The right to be present, like many other constitutional rights, may be waived. See Gagnon, 470 U.S. at 529; Taylor v. United States, 414 U.S. 17, 19-20 (1973).
The denial of the right to be present is subject to harmless error review. See Rushen v. Spain, 464 U.S. 114, 117 (1983) (defendant's exclusion from ex parte communication between the judge and a juror was a trial error that was subject to harmless error analysis); Hovey v. Ayers, 458 F.3d 892, 903 (9th Cir. 2006) ...