ORDER AND FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges an October 31, 2001 judgment of conviction entered against him in the Solano County Superior Court on one count of continuous sexual abuse of a child under the age of 14, in violation of Cal. Penal Code § 288.5; and one count of committing a lewd act upon a child under the age of 14 years, in violation of Cal. Penal Code § 288(a).*fn1 He seeks relief on the grounds that: (1) he was denied due process and the right to a fair trial when the trial court ruled that the prosecutor could introduce inadmissible impeachment evidence; (2) his trial counsel rendered ineffective assistance; (3) he was denied due process and the right to confront the witnesses against him when the trial court admitted the hearsay testimony of the mother of one of the victims; (4) he was denied the right to notice of one of the charges against him; (5) he was denied due process as a result of the cumulative impact of the errors of his trial counsel; and (6) the trial court lacked jurisdiction to increase his sentence and committed multiple instances of sentencing error. Petitioner has also filed a request for evidentiary hearing. Upon careful consideration of the record and the applicable law, the undersigned denies the petitioner's request for an evidentiary hearing and recommends that petitioner's application for habeas corpus relief be denied.
I. Procedural and Factual Background*fn2
During the summer of 1997, D.H., a four-year-old boy, spent the weekdays with his grandparents while his mother was at work. His grandparents lived on Plumb Street in Vacaville. Appellant and his family have also lived on Plumb Street in Vacaville for at least 16 years. While staying with his grandparents, D.H. sometimes went to appellant's house to see his big rig truck. On August 17, 1997, D.H. told his mother that appellant was his friend because he gave him candy. After his mother responded that "you can't like someone because he gave [you] candy," D.H. told her that appellant also "liked to pull his pants down." D.H.'s mother then asked what happened when his pants were pulled down, and D.H. pointed to his penis and answered that appellant "liked to tickle him." His mother called the police. She also told a neighbor on Plumb Street, Mallory D., who had a then 10-year-old son, J.V. When Mallory D. heard about D.H.'s statements, her son J.V. was on a trip with appellant in his truck. J.V. often went with appellant on trips in his truck, which had bunk beds in the back where appellant and J.V. slept. When J.V. returned, his mother confronted him with what D.H.'s mother had told her. J.V. "became very evasive, and he just looked and he said no." She asked if appellant had ever touched him, which he initially denied. She then told J.V. that "the police wanted to talk to him and that they were going to put him on a lie detector machine, and if he wasn't being honest, they would know." J.V. became hysterical, hung on to her, and said "it was all his fault, that he didn't know how to tell [her] what [appellant] had been doing to him for a long time." J.V. said he had been afraid to tell her because he thought she would get mad, he didn't want to upset her and he was "real embarrassed." His mother contacted the police.
J.V. testified that he began spending time with appellant when he was about seven and a half years old. He would spend the night at his house, go to the movies or park, and go on trips. His mother approved of the relationship, thinking "it was wonderful that [J.V.] had found a male figure that he could relate with [and] . . . fill that void that he no longer had with his father." When J.V. spent the night at appellant's house, which was up to five times a week, he would sleep with appellant in his bed. Appellant's wife slept in a separate bedroom.
One evening while sleeping in appellant's bed, J.V. woke up in the middle of the night because he felt appellant's mouth on his penis. His pajama bottoms had been pulled down, and appellant was to his side "like we made a figure 'L'." This happened "between 10 or 25" times, beginning when he was about eight and a half years old. When J.V. woke up while this was happening, he would pull up his pants and "scoot away." Appellant also touched J.V.'s penis with his hands between 20 or 30 times. This also happened while he was asleep, and would wake him up.
Appellant did the same things to J.V. while they were on truck trips. J.V. went on about 35 truck trips with appellant, and appellant touched J.V.'s penis with his hand on about half of those trips. Appellant also touched J.V.'s penis with his mouth 10 to 20 times in the truck. Appellant never said anything to him while it was happening or afterwards. J.V. did not remember the incidents where appellant would put his mouth on J.V.'s penis until after he had been seeing a counselor. He told a police officer it was like having "a dream inside of a dream."
J.V. had a friend, R.L., who met appellant through J.V. They would go to appellant's house together and watch television. Appellant's wife was there sometimes, but she stayed in her own bedroom with the door closed. Appellant once let R.L. drive a car while he sat on appellant's lap.
During the summer of 1997, J.V. and R.L., then 11 years old, had a camp-out in appellant's backyard. R.L. took a bath at appellant's house that night, and appellant watched him bathe. The boys came inside during the night because they were cold. They tried to sleep on the couch, but could not because it was too hard. They ended up sleeping in appellant's bed with him, with R.L. next to appellant and J.V. on the outside. R.L. testified that nothing happened that night in bed, but that he did not recall if he had told a police officer that appellant tried to touch his penis in bed. R.L. also testified that appellant had J.V. put a condom on, and then had R.L. try it on. Appellant touched R.L.'s penis while the condom was on. To the best of his recollection, this happened on the night of the camp-out.
During the summer of 1997, R.L. went to appellant's house at other times. On occasions when he was at appellant's house, appellant reached inside R.L.'s pants "more than two times" and fondled his penis. One incident occurred in appellant's living room when J.V. was not there. On one of the days that appellant touched his penis, he also saw appellant touch J.V.'s penis.
A few weeks after he spent the night at appellant's house, R.L. told his mother that appellant was "weird because he walked around with his zipper unzipped and he wore no underwear . . . ." A few moments later, he told his mother that appellant had touched him, after which she called the police. R.L. initially told the police nothing happened because he was scared.
D.S. also met appellant through his friend J.V. Once during the summer of 1997, when he was 11 years old, he went to appellant's house looking for J.V. J.V. was not there, but appellant was. D.S. walked into the garage and showed appellant some drawings he had done. Appellant pulled up the leg of his shorts about three times and "flashed" D.S., exposing his penis. D.S. left and never returned to appellant's home. The first person he told about the incident was J.V.'s mother, after he overheard a conversation between her and his mother about "something that they had heard on the news." He later told the police about the incident. Appellant's defense was that the boys were lying to please their mothers, and that there was animosity between J.V.'s mother and the Burbine family. J.V.'s mother was a friend of appellant's wife until 1996, when she obtained a restraining order against her because "she tried to hit my son with her car." After the investigation of the charged incidents, she obtained a restraining order against appellant's adult children, Kimberly and Sean Burbine, because they were "stalking" her son and had thrown a firecracker in a wood pile in front of her house.
The defense also presented the testimony of appellant's son, daughter, and son-in-law, all of whom saw appellant with J.V. and didn't notice anything unusual. The defense also introduced the testimony of Melani Hansen, a friend of Sean Burbine's. She testified that she had been at the Burbine home on a number of occasions when D.H. was there. In August or September of 1997, she observed an incident in which appellant asked D.H. "if he had used the bathroom . . . [and] . . . felt, like, the side of his leg by his knee and told him he needed to go home and change."
Opinion 1 at 2-5. Appellant Bradford Gary Burbine was found guilty by a jury of one count of continuous sexual abuse of a child (Pen.Code, § 288.5)*fn3 and two counts of committing a lewd act on a child ( § 288, subd. (a)).*fn4 Each of the three counts involved a different victim. On the day of the original sentencing hearing, appellant submitted letters from his family and friends, to be considered in mitigation. The court declined to review the letters because they were not timely submitted. Rejecting the prosecutor's contention that appellant should receive the aggravated term for the continuous sexual abuse count, the court sentenced appellant to the middle term of 12 years for that count, and added two consecutive terms of 2 years each, representing one-third the middle term for each of the lewd act counts, for a total prison term of 16 years.
Appellant filed an appeal and a habeas corpus petition, which we considered together in Burbine I. Only three of the issues addressed in our prior opinion are relevant to the present appeal.*fn5 First, we held that the court's refusal to consider appellant's untimely letters in mitigation was not an abuse of discretion. Second, we held that even if appellant's counsel was ineffective in not presenting the letters in a timely fashion, there was no reasonable probability that consideration of the letters would have led to a lesser sentence, because the letters were premised on the view that appellant was not guilty, and thus were entitled to no weight in mitigation.
Third, and most significantly for the purpose of the present appeal, we accepted appellant's argument that his conviction on one of the lewd act counts was invalid, because the jury instructions on that count erroneously failed to require jury unanimity as to the particular act on which the conviction was based. We therefore reversed the conviction on that count only, and remanded the case for resentencing.
At the resentencing, the judge listed the materials he had reviewed in preparation for the hearing, and did not mention the letters in mitigation that appellant submitted for the original sentencing. When the judge asked whether there was anything else he should consider, appellant's counsel responded "No."
The prosecution's memorandum on resentencing requested that the court impose the upper term on both the principal and the subordinate counts, to run concurrently. At the hearing, appellant's counsel argued that the trial judge was precluded from reconsidering his original decision to impose the middle term on the continuous sexual abuse count, which had been designated as the principal term of appellant's sentence. The judge rejected this argument, reasoning that the original sentence had been "made up of inter-dependent [ sic ] components." He explained that he understood this court's remand to imply that he was "back to square one again" with regard to sentencing on the remaining counts.
The judge sentenced appellant to the same aggregate prison term originally imposed -- 16 years -- but reached this result by a different route than he had originally taken. Rather than imposing the middle term of 12 years for the continuous sexual abuse count, which he again selected as the principal term, he imposed the upper term of 16 years. He imposed the middle term of 6 years for the remaining lewd conduct subordinate term, but ordered it to run concurrently, rather than consecutively as it had in the original sentence.
In explaining his decision to impose the upper term on the principal term, the judge cited three aggravating factors. First, he noted that the term imposed for the subordinate count could have been consecutive (as, indeed, it had been on the original sentence), but that he was going to impose it concurrently. (See Cal. Rules of Court, rule 4.421(a)(7).)*fn6 Second, he stated that appellant's crimes had been "obviously planned and sophisticated" in that they involved "taking sexual advantage of young children with movies and buying them toys and other things . . . to insure that he remained in the child's good graces, . . . [and] to keep them from telling what is going on." (See rule 4.421(a)(8).) Finally, he noted that appellant "took advantage of a position of trust that he developed with these young children, taking them on rides on [appellant's big rig] truck, et cetera." (See rule 4.421(a)(11).)
A. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it 'confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). 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). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
Petitioner raises two challenges to evidentiary rulings made by the trial court. Review of those rulings in this federal habeas proceeding is under a deferential standard.
Absent some federal constitutional violation, a violation of state law does not provide a basis for habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Accordingly, a state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process. Drayden v. White, 232 F.3d 704, 710 (9th Cir. 2000); Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir. 1999); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). Habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that the error resulted in "actual prejudice," which is defined as a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
b. Evidence of Prior Conduct
Petitioner's first claim is that his right to due process and a fair trial were violated when the trial court ruled that he could be cross-examined about a prior conviction involving homosexual activity with an adult male. Petitioner claims that he chose not to testify because of this ruling. He explains that if he had testified, "he would have denied the (trial) charges, and there was no forensic evidence to contradict him." Pet. at 4.
Petitioner raised this claim in his first appeal, filed in 2001. The California Court of Appeal rejected the claim, reasoning as follows:
Appellant argues that the trial court in ruling prospectively that evidence of his arrest in 1990, for a lewd act in public involving another man and subsequent conviction,*fn7 would be admissible if appellant testified that he had no sexual interest in men. He maintains this evidence was inadmissible under Evidence Code sections 1008 and 352 as "propensity" evidence that was more prejudicial than probative.
The Attorney General correctly points out that "to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." (Luce v. United States (1984) 469 U.S. 38, 43; People v. Collins (1986) 42 Cal.3d 378, 383-384.) Here, after the court ruled on the prior conviction, appellant chose not to testify. We address the issue, however, because appellant also argues both that the ruling denied him his constitutional right to testify and that his attorney was ineffective in failing to suggest ways he could tailor his testimony to avoid impeachment.
Appellant first maintains that the trial court erred in concluding that evidence of his prior arrest and conviction could be admitted because it was inadmissible propensity evidence. This argument fails at the outset because the evidence was offered only for impeachment purposes, and only in the event appellant testified that he was not sexually attracted to men. The court initially ruled that evidence of appellant's conviction would not be admissible under Evidence Code sections 1108 and 352 because it was more prejudicial than probative. During the defense case, appellant's trial counsel moved to prevent the prosecutor from asking him questions about his "sexual proclivities." The prosecutor informed the court that appellant had told a detective investigating the case that he had never had sexual interest in anyone other than adult women. The court ruled that if appellant chose to testify, the prosecutor could ask him questions about his sexual interests. If appellant were to testify that he had no sexual interest in males, the court would allow evidence of the prior lewd act involving a man to be used for impeachment purposes. As the court stated, "Otherwise, you are using this -- my earlier analysis as a shield to perpetrate perjury, and that's not going to happen. So I don't know what more I can say, but it seems to me that inquiry on cross-examination into your client's sexual behavior is relevant and admissible should he take the stand, because that's one of the elements of this charge."*fn8
While the prior lewd act would be more prejudicial than probative as propensity and character evidence, if appellant testified that he had no sexual interest in males, it would then become probative of appellant's veracity. Where a witness has made blanket denials, it is proper to impeach that testimony with evidence of a specific act to the contrary because it is probative of the witness's credibility. (People v. Senior (1992) 3 Cal.App.4th 765, 778-779.) We find no error in conditionally admitting evidence of the prior lewd act for impeachment purposes only.
Appellant next claims that this ruling "effectively" prevented him from testifying, violating his constitutional right to do so. To the contrary, appellant chose not to testify. He could have testified and admitted a sexual interest in men, or he could have testified, denied such an interest, and disputed the underlying factual basis for the Berkeley arrest. The court's prospective ruling on what would be proper impeachment did not deny appellant his right to testify.
In his claim before this court, petitioner is challenging the trial court's ruling that he could be impeached with evidence of his prior conviction if he took the stand and denied ever having a sexual interest in a man. However, "[t]o raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." Luce v. United States, 469 U.S. 38, 43 (1984); United States v. Olano, 62 F.3d 1180, 1206 (9th Cir. 1995). The reason for this rule is that, without a transcript of an actual in-court exchange, a reviewing court must speculate as to the propriety of the cross-examination and/or any harm resulting therefrom. As the Supreme Court explained in Luce:
Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner's credibility at trial by means of the prior conviction. When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government's case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction.
Petitioner's description of his claim proves this point. He agrees that "if he could properly be asked about his interest in 'males,' and he denied that had such an interest, then he might be impeached with evidence of the incident." Pet. at 22. However, he argues that the prosecutor could not properly have asked him on direct examination about his interest in males because: (1) evidence that someone has a "propensity" to commit certain conduct "per se is not admissible;" (2) any question whether he had a sexual interest in males would be "too broad a question" because he was charged with molestation against male children and not males in general; and (3) any question about his sexual interest in males would constitute improper "impeachment on a collateral matter" because the prosecutor would be asking the question simply to bring up the prior conviction. Id. at 22-23. In the alternative, petitioner argues that there was "virtually no chance" that he would have been asked a proper question on direct examination about a sexual interest in males because "if petitioner or his attorney were on the ball, petitioner would not give such testimony, knowing that he would likely be impeached with evidence of that incident." Id. at 23. Finally, petitioner asserts that if he had testified "and neither admitted nor denied an interest in men," the prosecutor would have been unable to impeach him with evidence of his prior conviction. Id. at 24. Petitioner's speculation as to which questions might have been asked if he decided to testify, and what his responses might have been, does not allow the court to properly assess his claim and is insufficient to warrant habeas corpus relief. Under Luce and Olano, petitioner has waived his challenge to the trial court's evidentiary ruling.
Even considered on the merits, the claim fails. Petitioner's right to due process and a fair trial were not violated by the trial court's ruling that his prior conviction for disturbing the peace could be admitted for impeachment purposes. In fact, petitioner concedes that such impeachment might be appropriate, depending on what transpired once he testified. See Pet. at 22, 23. The trial court ruled, in essence, that evidence of petitioner's prior conviction could be admitted to prevent him from committing perjury should he choose to take the stand. This ruling did not render petitioner's trial fundamentally unfair. Petitioner has cited no case holding that the introduction of his prior conviction under these circumstances would be irrelevant or improper. This court agrees with the California Court of Appeal that there was no constitutional error "in conditionally admitting evidence of the prior lewd act for impeachment purposes only." Opinion 1 at 6.*fn9
The court also rejects petitioner's argument that the trial court's evidentiary ruling prevented him from exercising his right to testify. Petitioner states that once he was informed he could be impeached with evidence of his prior conviction if he denied that he "liked boys," he decided not to testify. Pet. at 21. He argues that it was critical that he testify because "he was the only witness who could refute the complainants' stories." Id. However, petitioner is speculating that he might have been asked whether he "liked boys." Further, the trial court ruled that petitioner could be impeached by his prior conviction only if he testified falsely. The content of petitioner's testimony was within his control. The court also notes that one of the exhibits attached to the petition is a letter from petitioner's trial counsel to petitioner's habeas counsel. Pet., Ex. E at consecutive p. 8. Therein, trial counsel makes the following representations:
As you are aware, I advised the client that he would be subject to impeachment if he testified. The court ruled that his prior statement to a police officer was admissible over my objection. This in turn raised an issue of credibility and an issue of about [sic] his prior conduct, which was previously excluded. In essence, the court held that if the defendant denied homosexual proclivities, it would allow the prior homosexual conduct evidence. If he admitted homosexual tendencies, the prior conduct may be excluded. We didn't discuss manipulating the testimony to avoid possible impeachment. The client made the decision not to testify in court as he was about to take the stand. I did not dissuade or encourage his decision.
I advised the client that he could testify or not. It was his decision and he understood the potential impeachment cross examination attack.
Id. Counsel's statements clarify that petitioner was advised it was up to him whether to testify and that he made an informed decision not to do so. Petitioner chose not to testify because he apparently believed that he stood to lose more by testifying, and therefore risking the admission of his prior conviction, than by remaining silent. As noted by the California Court of Appeal, he could have made the opposite choice. In light of these circumstances, petitioner cannot demonstrate that he was "forced" by the court's ruling not to testify. In any event, "[b]ecause an accused's decision whether to testify 'seldom turns on the resolution of one factor,' . . . a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify." Luce, 469 U.S. at 42. Petitioner's exercise of his choice whether to testify under these circumstances did not violate his constitutional rights.
For the foregoing reasons, petitioner is not entitled to habeas relief on his claims concerning the admissibility of his prior conviction.
Petitioner claims that he was denied his rights to due process and to confront the witnesses against him when the trial court admitted the hearsay testimony of the mother of one of the victims. He argues that when his trial counsel objected to the admission of this testimony, the judge should have "sustained the objection, held a hearing, and taken evidence on the reliability of the statements." Pet. at 38. Petitioner contends that if the trial judge had done so, he would have found the statements unreliable and "would then have seen it would be erroneous to admit the hearsay testimony because it did not meet the statutory requirements for admission set out in California Evidence Code section 1360." Id.
The California Court of Appeal rejected this claim in its opinion on petitioner's first appeal. The court reasoned as follows:
Appellant claims that the court erred in admitting the portion of D.H.'s mother's testimony in which she stated that her son D.H. pointed to his penis and told her that appellant "liked to pull his pants down . . . [and] . . . tickle him." He argues that the statements are inadmissible under Evidence Code section 1360 for three reasons. He maintains that the court erred in failing to hold a hearing, that the testimony did not ...