The opinion of the court was delivered by: John W. Sedwick United States District Judge
Petitioner Darryl George Rosen, a state prisoner appearing through counsel, has petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254. Rosen is currently in the custody of the California Department of Corrections and Rehabilitation incarcerated at the Mule Creek State Prison. Respondent has filed an Answer. Rosen has not filed a traverse.
I. BACKGROUND/PRIOR PROCEEDINGS
Rosen was charged with one count of raping a minor, with a special allegation that appellant tied or bound the victim during commission of the offense (Cal. Penal Code §§ 261(a)(2)/667.61(e)(6)), count one); three counts of felony sexual battery against restrained victims (Cal. Penal Code § 243.4(a); counts two, three, and seven); nine counts of committing assault under color of authority while employed as a peace officer (Cal. Penal Code § 149, counts four, five, eight, nine, ten, twelve, fourteen, fifteen, and sixteen); one count of misdemeanor sexual battery (Cal. Penal Code § 243.4(e)(1), count eleven); two counts of falsely imprisoning through violence, menace, fraud or deceit (Cal. Penal Code § 236, counts thirteen and seventeen); and one count of dissuading a witness (§ 136.1(b)(1), count eighteen). After a trial by jury in the Sacramento County Superior Court, Rosen was found guilty of counts six through nine and fourteen through eighteen, and not guilty of counts ten through thirteen. The jury failed to reach an unanimous verdict on counts one through five and the trial court declared a mistrial as to those counts. Rosen was sentenced to a term in state prison of nine years, eight months.
Rosen timely appealed his conviction to the California Court of Appeal, Third District, which affirmed his conviction in a reasoned decision on March 27, 2007, as modified on denial of rehearing on April 16, 2007.*fn2 The California Supreme Court granted review and subsequently dismissed review September 12, 2007, citing People v. Black (2007) 41 Cal. 4th 799, 62 Cal. Rptr. 3d 569, 161 P.3d 1130 and People v. Sandoval (2007) 41 Cal. 4th 825, 62 Cal. Rptr. 3d 588, 161 P.3d 1146.*fn3
Rosen timely filed his petition in this Court on February 6, 2008.
II. GROUNDS PRESENTED/DEFENSES
In his petition Rosen raises seven grounds: (1) denial of due process by the introduction of evidence of prior sexual misconduct; (2) insufficiency of the evidence to support conviction for assault by a public officer; (3) insufficiency of the evidence to support conviction of misdemeanor false imprisonment; (4) rejection of evidence that a complaining witness had been previously involved in crimes; (5) ineffective assistance of trial counsel in failing to present impeaching evidence of a complaining witness; (6) sentenced at the upper term in violation of his Sixth Amendment rights under Cunningham v. California;*fn4 and (7) jury misconduct (discussions of case by jurors, alternate jurors, and non-jurors).
Respondent asserts that the first ground is unexhausted. Respondent raises no other affirmative defenses.*fn5
Because Rosen filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the California Court of Appeal was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn6 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn7
Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn8 When a claim falls under the "unreasonable application" prong, a state court's application of the Supreme Court precedent must be "objectively unreasonable," "not just incorrect or erroneous."*fn9 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn10 Finally, in a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict.*fn11
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn12 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn13
To the extent that Rosen raises issues of the proper application of State law, they are beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law.*fn14 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn15 Nor may a federal court issue a habeas writ based upon a perceived error of state law, unless the error is sufficiently egregious to amount to a denial of due process under the Fourteenth Amendment.*fn16
Ground 1: Introduction of Evidence of Prior Sexual Misconduct
Rosen argues that under California Evidence Code § 1108 it was error to introduce evidence of a prior incident of sexual misconduct without foundational evidence, through expert testimony, that the prior incident is related to the charged incident. After a lengthy discussion of the evidence, the California Court of Appeal rejected Rosen's claim holding:
Evidence Code section 1108 is an exception to the general rule that "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid.Code, § 1101, subd. (a); further section references are to the Evidence Code unless otherwise specified.)
Subdivision (a) of section 1108 states: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352 [which gives the trial court discretion to exclude evidence if its probative value is outweighed by the probability that its introduction would require an undue consumption of time or would create a substantial danger of undue prejudice, confusing the issues, or misleading the jury]."
In a creative argument, defendant asserts that section 1108 allows the introduction of other sexual offenses evidence to show his "disposition" to commit the charged crime, rather than his "character." According to defendant, "character" and "disposition" are distinguishable and refer to different "distinct properties of the human personality," i.e., disposition refers to the "'prevailing aspect of one's nature [a genial disposition],'" whereas character "'is applied to the sum of moral qualities associated with a distinctive individual [a weak character] . .'" (Italics omitted.) Defendant concedes that evidence of a person's character "is not subject to expert analysis." However, he claims, the "avenue for introduction of evidence of disposition is through a properly qualified expert witness, or in some limited circumstances through the introduction of lay opinion testimony." Thus, he argues, without expert testimony that the evidence of defendant's other sexual offenses shows he "had a predisposition to commit sexually deviant acts with females, . the other crimes evidence should not have been permitted."
Again, defendant reads something into the statute that does not exist, namely, in the words of his counsel, evidence of other sexual offenses is not admissible "without the filter of a qualified expert opinion."
By enacting section 1101, the Legislature determined that "propensity evidence," i.e., a defendant's "disposition to commit [criminal acts]," ordinarily should be inadmissible ""'not because it has no appreciable probative value, but because it has too much." . [Citations.]' [Citations.]" (People v. Falsetta (1999) 21 Cal.4th 903, 911, 912, 915 [89 Cal. Rptr. 2d 847, 986 P.2d 182], original italics.) However, by enacting section 1108, the Legislature determined that in prosecutions for the commission of sexual offenses, "'the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed . by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is "critical" given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. [Citation.]' [Citations.]" (21 Cal.4th at pp. 911--912.)
The language of section 1108 does not say that other sex crimes evidence must be introduced by way of expert testimony regarding the defendant's predisposition to commit sexual offenses. (People v. McFarland (2000) 78 Cal.App.4th 489, 494 [92 Cal. Rptr. 2d 884] ["section 1108 authorizes evidence of a defendant's uncharged acts in certain cases, but says nothing about opinion evidence regarding character"].) Nor is such a requirement necessary, because the probative value of other sex crimes evidence is a matter of common sense and common experience; a person need not be an expert to understand that one who commits a sex offense may be predisposed to commit more sex offenses in the future. It is readily apparent that "'the willingness to commit a sexual offense is not common to most individuals,'" and that sex offenders often are recidivists; thus, the fact that a defendant has committed a prior sexual offense is "'"evidence of the defendant's disposition to commit such crimes, [which has a] bearing on the probability or improbability that [he or she] has been falsely or mistakenly accused of [committing another] such . offense."' [Citation.]" (People v. Falsetta, supra, 21 Cal.4th at p. 912.)
Indeed, in a sex crime prosecution, a prosecutor is not allowed to present expert testimony regarding a defendant's predisposition to commit sexual offenses, unless it is offered to rebut similar evidence presented by the defense to show that the defendant is not predisposed to commit such crimes. (People v. McFarland, supra, 78 Cal.App.4th at pp. 493--496 [rejecting a claim that § 1108 "authorize[s] . opinion [evidence of] sexual propensity during the prosecution's case-in-chief"; noting, instead, that the statute "authorizes only the 'specific act' variety of character evidence"].)
In another attack on the other uncharged sex crimes evidence, defendant claims that its prejudicial effect outweighed its probative value and, thus, the trial court abused its discretion under section 352 by not excluding the evidence. According to defendant, the evidence had little probative value for three reasons. First, he reiterates his claim that the prosecutor's decision not to formally charge defendant with offenses based on the other crimes evidence means the evidence was unreliable. We already have rejected that claim. (See fn. 1, ante.)
To the extent that Rosen argues the Court of Appeal misconstrued California law, it is, as noted above, beyond the purview of this Court on habeas review. The Supreme Court has acknowledged its "traditional reluctance to impose constitutional restraints on ordinary evidentiary rulings by state trial courts."*fn17 "[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules"*fn18 "Errors of state evidentiary law do not entitle one to federal habeas relief unless the alleged error so fatally infected the proceedings as to render them fundamentally unfair."*fn19 To the extent that Rosen is raising a due process claim, i.e., that the use of the evidence to establish propensity violates due process, that claim is foreclosed by the Ninth Circuit decision in Meija v. Garcia,*fn20 holding that since there is "no Supreme Court precedent establishing that admission of propensity evidence, as here, to lend credibility to a sex victim's allegations, and thus indisputably relevant to the crimes charged, is unconstitutional. We cannot say that the California Court of Appeal decision was contrary to clearly established Supreme Court precedent." In Meija the Ninth Circuit also noted that it had previously upheld Federal Rules of Evidence 414-roughly analogous to California Evidence Rule 1108, allowing prior acts of child molestation into evidence-as being consistent with due process requirements.*fn21
Rosen is not entitled to relief under his first ground.*fn22
Ground 2: Insufficiency of Evidence (Assault by Public Officer)
Rosen argues that because the alleged victim touched him and she did not claim that he touched or attempted to touch her, or that he threatened her, there was insufficient evidence to convict him on the assault by a public officer charge. The California Court of Appeal rejected Rosen's arguments, holding (footnote omitted):
Every public officer who, under color of authority, without lawful necessity, assaults or beats any person" is guilty of a crime. (Pen. Code, § 149.) An assault includes an unconsented touching of the victim. (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 1, 2, pp. 638--639.)
According to defendant, the evidence does not support his conviction for assaulting S.M. under color of authority and without legal necessity. This is so, he argues, because it was S.M. who did the touching when she complied with defendant's direction to "grab [his] dick." In his view, "[t]here was no assault described in [S.M.'s] testimony. [He] did not touch her, and made no effort to touch her. He committed no act ...