FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on April 5, 2002, in the Sacramento County Superior Court on charges of two counts of forcible lewd and lascivious conduct and one count of lewd and lascivious conduct. He seeks relief on the grounds that: (1) his rights under the Confrontation Clause were violated by the trial court's admission of testimony from the victim's mother and a videotape of statements by the victim; (2) the evidence was insufficient to support his conviction on all counts (claims two and three); (3) his Sixth Amendment right to trial by jury and Fifth Amendment right to due process were violated when a judge other than the trial judge ruled on his motion for new trial and pronounced sentence; and (4) his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND*fn1
Defendant was convicted by a jury of one count of lewd and lascivious conduct (Pen. Code, § 288, subd. (a)) and two counts of aggravated lewd and lascivious conduct (Pen.Code, § 288, subd. (b)(1)). He was sentenced to state prison for an aggregate term of 11 years.
The victim, D.W., and her mother, C.W., lived with defendant for about a year. During this year, they changed residences once.
D.W. turned six in September 1997. Defendant turned 32 the following month. He was 5 feet 11 inches tall and weighed 145 pounds.
On November 23, 1997, C.W. went to a store near their home and left D.W. with defendant. C.W. was gone five to 10 minutes. During that time, defendant and D.W. went into a back room of the residence that contained computer equipment. Defendant was wearing shorts and no shirt; D.W. was wearing a skirt and no underpants. Defendant touched D.W.'s "private" with his hand under her clothes. He also directed D.W. to touch his "private" with her hand. Defendant told D.W. not to tell her mother because her mother would get mad.
When C.W. returned from the store, she noticed a change in defendant and D.W. and asked what was going on. Defendant said nothing was going on, turned to D.W. and said, "Right." D.W. "frantically" shook her head no with eyes wide open. C.W. continued to ask what was wrong and defendant became agitated. An argument ensued, which led to violence and a call to the police. Defendant was arrested and thereafter ceased to live with C.W. and D.W.
Around Thanksgiving, D.W. told her mother about the molestation. D.W. said that defendant touched her "privates" and she touched his. D.W. also mentioned an earlier incident of molestation.
On November 29, C.W. called a representative of Women Escaping a Violent Environment (WEAVE) and reported what her daughter had told her. She also reported the matter to the police. Officer Brian Wegesser spoke over the phone to C.W. and then to D.W. D.W. told the officer that defendant sat beside her and put his hand on her knee. Defendant asked her to help pull down his pants and asked her to touch his "private parts" and "pet" him.
D.W. said that when she did so, defendant's private part "felt weird and it got real big." However, D.W. told Wegesser that defendant did not touch her.
On December 9, 1997, D.W. was interviewed at the Multi Disciplinary Interview Center (MDIC) by Paula Christian, a forensic interview specialist. During the interview, D.W. indicated that defendant began speaking to her about areas you are not supposed to touch and asked if she was curious about his private places. She told him, "[y]es." He asked her to pull down his shorts, but she said, "no." He told her to "[d]o it," and she complied. He told her to touch his private part and she did so with her hand. D.W. also described a prior incident at the old house when defendant asked her to touch his "private" and she did so. According to D.W., defendant also touched her private parts.
I. Standards of Review Applicable to Habeas Corpus Claims
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. See Peltier 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. See Estelle 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 de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh 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.
See also Penry 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). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
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). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Petitioner first claims that his right to confront the witnesses against him was violated by the admission into evidence of the videotaped interview of the victim at the Multi-Disciplinary Interview Center (MDIC) and the testimony of the victim's mother regarding statements made to her by the victim. (Pet. at consecutive p. 6.) Petitioner argues that the videotape should not have been admitted because there was insufficient evidence that the victim's statements to the counselor were reliable. (Id.) He also argues that the mother's testimony regarding what the victim allegedly told her about the molestations was not reliable because the mother had "ample opportunity" to coach her daughter. (Id.) Petitioner points out that it was the theory of the defense that the victim's mother had fabricated the molestation incidents so that petitioner would not disclose to authorities that the mother had been committing welfare fraud. In this regard, petitioner notes that the victim answered in the affirmative when asked at trial whether her father, mother, or the district attorney told her what to say in the courtroom in response to questions. (Id.) Petitioner points to the following trial testimony to support this argument.
Q: (by petitioner's counsel): Now, before you came in here today, have you talked with your father or your mother or this gentlemen [sic] to my left about the incidents that you were going to talk about?
Q: And did they talk to you and tell you to speak up and to say all real things?
Q: And did they talk to you about what it was you were going to testify about? (Pause.)
Q: Okay, did they tell you what to say here in court in response to questions? (Pause.)
A: Yes. (Reporter's Transcript on Appeal (RT) at 154-55.)*fn2
Petitioner also argues that the videotaped interview of the victim by authorities improperly supported the victim's "contradictory" and "weak" trial testimony. In this regard, petitioner notes that the trial court questioned whether the interviewer was "suggesting answers" to the victim during the interview. (Id.) With respect to the alleged inconsistencies in the victim's trial testimony, petitioner explains:
[The victim] told her mother that she and petitioner had touched each other's privates, yet a social worker testified that [the victim's] mother told her that [the victim] had said that petitioner has seen her "private part" after a bath, but did not touch her. (RT 236.) An officer who spoke to [the victim] two days after the incident testified that she told him that [petitioner] never touched her, though he had her touch him. (RT 240-241.) At trial, [the victim] said that petitioner touched her "privates" once and that, during the same incident, she touched petitioner's privates, because he asked her to, but there had never been any previous or subsequent touching. (RT 150-151, 157-158). (Id.) Finally, petitioner argues that the improperly admitted videotaped interview was the only evidence admitted at his trial in support of the charge of lewd and lascivious conduct without force or fear. (Id.)
Petitioner raised each of the above-described claims on appeal. The California Court of Appeal rejected each of petitioner's arguments, reasoning as follows:
The People moved in limine to introduce evidence of three categories of pretrial statements by D.W.: (1) those made to her mother on November 27; (2) those made over the telephone to Officer Wegesser on November 29; and (3) those made during the MDIC interview on December 9. The People claimed hearsay exceptions for fresh complaints and Evidence Code section 1360 (hereafter section 1360). Regarding the MDIC interview, the prosecutor informed the court: "The interviewer in this case was Paula Christian. She's a forensic interviewer specializing in interviewing children in these cases. The facility is now under the auspices of [Child Protective Services]. The interview was done with a forensic interviewer, in this case, Paula Christian through a one-way mirror witnessed by law enforcement, Sacramento Police Department Detective David Ford. There was a deputy district attorney on the other side of the mirror. That was myself. The mother was not present in the room during the interview. It was kept separate for purposes of noninfluencing the child." Defendant argued against introduction of the evidence, asserting that there had been no delay between the incident and the report to police. The court responded that the issue under section 1360 is not timing but whether there are sufficient indicia of reliability of the pretrial statements. The court further expressed its belief that sufficient indicia of reliability existed for introduction of the MDIC interview tape, explaining: "[I]t seems to me that the MDIC, as described by [the prosecutor], is the way that it's been advised [sic], that it works under a controlled situation . . . . [¶] So the MDIC, seems to me, is sufficiently reliable unless have you [ sic ] some quibble with the way the MDIC works as represented by [the prosecutor] to the Court."
Defendant then argued against permitting the prosecution to introduce the tape before the testimony of the victim. The court indicated that timing of the evidence was a separate issue. The court concluded: "[T]here's also no question about the reliability getting back to the MDIC because you know what she said because you could see her say it. So there's no question about what they wrote down and had they wrote [ sic ] it down correctly. [¶] So I think I'm going to permit the MDIC statement."
Defendant argued against introduction of the statements to Officer Wegesser because they had been made over the phone. The court reserved ruling on the issue. The court ruled that the statements made by D.W. to her mother would be admitted, explaining that C.W. would be available for cross-examination to try and prove she made up the report of molestation. Later, the court ruled to exclude testimony regarding statements made by the victim to Officer Wegesser.
The court did not reach the issue of whether the evidence could come in under the fresh complaint exception to the hearsay rule, and the prosecution did not pursue the matter further.
Defendant contends that the court erred in admitting the tape of the MDIC interview. He argues that the court failed to undertake the inquiry required by section 1360 and, therefore, introduction of the evidence violated both the hearsay rule and the confrontation clause. The People counter that the court conducted the inquiry required by section 1360 and the evidence was properly admitted. "The confrontation clause of the Sixth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides that '"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."' (Idaho v. Wright (1990) 497 U.S. 805, 813 [110 S.Ct. 3139, 3145, 111 L.Ed.2d 638, 651].) The confrontation clause precludes admission of hearsay evidence unless the prosecution demonstrates that the statement possesses adequate indicia of reliability. Reliability may be inferred, without more, if the evidence is admitted under a firmly rooted hearsay exception. Otherwise, the evidence is presumed unreliable and must be excluded absent a showing of particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything to the statement's reliability. (White v. Illinois (1992) 502 U.S. 346, 357 [112 S.Ct. 736, 743, 116 L.Ed.2d 848, ]; Idaho v. Wright, supra, at pp. 814-816, 818, 820-821 [110 S.Ct. at pp. 3145-3147, 3148, 3149-3150; People v. Eccleston [ (2001) 89 Cal.App.4th 436, 443]; People v. Duke [ (1999) 74 Cal.App.4th 23, 29 [87 Cal.Rptr.2d 547].) Whether '"particularized guarantees of trustworthiness"' exist is determined by examining 'the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief.' (Idaho v. Wright, supra, at pp. 819, 820 [110 S.Ct. at pp. 3148, 3149].)" (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1373-1374.)
Section 1360, subdivision (a) reads: "In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply:
"(1) The statement is not otherwise admissible by statute or court rule. "(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability. "(3) The child either: "(A) Testifies at the proceedings. "(B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child."
Section 1360 was enacted in 1995 (Stats.1995, ch. 87, § 3, pp. 222-223) and is "too new to be considered a firmly rooted hearsay exception because it does not reflect 'longstanding judicial and legislative experience in assessing the trustworthiness' of the statements it covers; the statute must therefore satisfy the 'particularized guarantees of trustworthiness' standard under the confrontation clause." (People v. Eccleston (2001) 89 Cal.App.4th 436, 445.) "'The nonexhaustive list of factors that the United States Supreme Court has cited as relevant to the reliability of hearsay statements made by child witnesses in . . . abuse cases are (1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate. [Citation.]'" (In re Lucero L. (2000) 22 Cal.4th 1227, 1239; see also People v. Roberto V., supra, 93 Cal.App.4th at p. 1374.) In each case, the ultimate question is whether "'the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility . . . .'" (People v. Greenberger (1997) 58 Cal .App.4th 298, 327.)
Defendant contends that the trial court failed to undertake the inquiry necessary to determine reliability of the MDIC statements. The court did not view the interview tape; instead, it relied solely on the representations of the prosecutor concerning the interview process. Defendant argues that if the court had undertaken the proper inquiry, it would have concluded that none of the factors relevant to reliability was satisfied. According to defendant, the statements were not spontaneous, the victim gave differing accounts of what happened, there was clear motive for ...