FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se 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 May 30, 2003, in the Sacramento County Superior Court on charges of forcible rape of a child, unlawful sex with a child under the age of 16, lewd conduct with a child, and assault with intent to commit rape, with findings that he also tied or bound the victim in the commission of two of the counts against him. He seeks relief on the grounds that: (1) the trial court violated his rights to due process and equal protection and abused its discretion when it admitted evidence of his propensity to commit sex offenses; (2) the jury instructions regarding propensity evidence violated his right to due process; (3) the trial court violated his right to counsel by denying his motions for substitution of counsel; (4) the trial court violated his right to due process when it failed to hold an adequate hearing to determine whether he was competent to stand trial; and (5) his right to trial by jury was violated during his sentencing proceedings. 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
A jury convicted defendant Ronald Wayne Cooley of forcible rape of a child (three counts, Pen. Code, § 261, subd. (a)(2)); unlawful sex with a child under the age of 16 (Pen.Code, § 261.5, subd. (d)); lewd conduct with a child (Pen.Code, § 288, subd. (c)(1)); and assault with intent to commit rape (Pen.Code, § 220). The trial court sentenced defendant to state prison for a term of 22 years 8 months, plus 15 years to life.
When Monica M. was 12 years old, she lived in a Sacramento apartment with her mother and defendant, who was her stepfather. At that time, defendant would enter her room in the middle of the night on a regular basis, lift her shirt over her head to fondle her breasts, and reach his hand down her shorts to touch her vagina and buttocks. Defendant did this once or twice a week until Monica turned 14. Monica would squirm away from defendant to get him to stop, but she never told anyone.
In high school, Monica joined the wrestling team. Almost every night Monica would play wrestle with defendant. Defendant would often pin her on her stomach and grind his pelvis into her buttocks. His penis was usually erect.
One day during Monica's ninth grade Christmas break, and while her mother was at work, defendant brought home a bottle of peppermint schnapps. Defendant and Monica played poker and each time one of them lost a hand, the loser would have to take a shot of alcohol. The game evolved into strip poker. They played strip poker until Monica was naked. Defendant and Monica went into Monica's room and lay down on her bed to watch a movie. Defendant told Monica not to put her clothes back on. Defendant touched her breasts and got on top of her. Monica tried to resist, but defendant inserted his penis into her vagina. Monica was in pain and continually tried to get him off of her. Defendant held her down as he continued to have intercourse with her. When defendant was finished, he told Monica to take a shower and not to tell anyone.
One afternoon between January and July 2002, while Monica was taking a shower and her mother was asleep in another room, defendant entered the bathroom. Defendant removed his shorts and got in the shower with Monica. Defendant grabbed Monica's wrist and turned her so she was facing away from him. Defendant pinned Monica against the wall, tried to get up against her, and touched her buttocks. Eventually, defendant told Monica to finish her shower and got out. When Monica finished her shower, she went to her room and tried to get dressed. Defendant went into Monica's room, ran his hand up her thigh and pushed her face down onto her bed. Defendant got on top of her and started grinding his pelvis against her buttocks. Monica did not call out to her mother.
On July 1, 2002, Monica was home alone with defendant. Defendant entered Monica's room, grabbed her wrists and handcuffed her to the bed. Monica kicked and squirmed as she tried to get her wrists free. As defendant removed Monica's clothes, she kicked him. Defendant left the room and returned with a yellow fishing rope, which he used to tie her ankles to the footboard. Defendant undressed, left the room and returned with a condom. He put on the condom and began having intercourse with her.
Monica was in pain and uncomfortable and complained to defendant the rope was hurting her ankle. Defendant untied her right ankle and penetrated her vagina with his penis again.
Monica began screaming and trying to kick with her free leg. Defendant then taped her mouth shut and continued to have sex with her. Defendant told Monica he would remove the handcuffs and leave her alone if she would perform oral sex. Monica reluctantly agreed. Defendant untied her left ankle and removed one handcuff. But as he brought his penis to Monica's mouth she refused.
Defendant handcuffed Monica's free hand and continued having sex with her. After about 20 minutes, defendant removed the handcuffs, untied her and ordered her to take a shower. Monica did not tell anyone what defendant did.
A couple of days later, defendant told Monica he did not believe prior statements that she had been a virgin, and if she ever lied to him again, he would rape her again. Monica decided to tell her mother. Monica wrote her mother a letter and explained defendant had raped her and she was moving out.
On July 11, 2002, Sacramento County Deputy Sheriff Angela Langier responded to a call about defendant's sexual assault of Monica. Monica and her mother gave Deputy Langier the letter from Monica to her mother and several pages of e-mail correspondence reflecting communications between Monica and defendant posing as "John Jones." Deputy Langier examined Monica's wrists and ankles and observed bruising.
Steven Osborne, a detective assigned to the Child Abuse Bureau with the Sacramento County Sheriff's Department, conducted a follow-up investigation the following evening. Detective Osborne seized two yellow fishing stringers, a pair of handcuffs, a partial roll of duct tape, Monica's bedding, a partially filled bottle of peppermint schnapps, and a computer.
Detective Osborne also set up a pretext phone call so Monica could confront defendant about the rape. The conversation was recorded. Monica offered to recant if defendant promised not to touch her again. Defendant promised never to touch Monica again, told her they will not be left alone again, and apologized for everything that happened.
On July 15, 2002, Cathy Boyle, a nurse practitioner at the U.C. Davis Medical Center, gave Monica a complete physical examination. Boyle discovered a healed deep tear trauma on Monica's hymen. In Boyle's expert opinion, Monica's condition was consistent with sexual abuse.
Detective Vincent Recce, a computer expert for the Sacramento County Sheriff's Department, examined the contents of the computer seized by Detective Osborne. All of the e-mails had been deleted from the hard drive. Detective Recce was able to recover the contents of defendant's e-mail files. He found correspondence between defendant, using the address "email@example.com" under the name "John Jones," and Monica. In the e-mails, between December 2001 and March 2002, defendant told Monica, among other things, "I would like to do you" and "How do you feel I could use you for a sex toy." (Sic.)
At trial, Kimberly Sable and Esther Cortes, former co-workers of defendant at "Things Remembered," testified that defendant had touched them inappropriately and made sexual comments to them while at work. Sable, who was 17 when she worked under defendant's supervision, testified defendant asked her, among other things, "How do you like to be handled," and whether she wore a g-string or thong. On a separate occasion, defendant grabbed Sable's hand and put it down his pants, touching his penis. Cortes testified defendant, also Cortes's supervisor, grabbed her buttocks on several occasions and stated, "I can't help it" and "Esther, you, I would do." Both women were successful in their sexual harassment suits against defendant.
Defendant testified on his own behalf. He admitted buying peppermint schnapps for Monica and playing poker, but denied playing strip poker and touching her. Defendant admitted to horsing around by handcuffing and hog-tying Monica, but denied ever raping or having sex with her. Defendant denied the sexual misconduct involving Sable and Cortes.
Defendant testified he set up the "clown95815" e-mail address as a concerned parent and posed as a teenager to find out about Monica's conduct. Defendant also testified he knew the pretext phone call from Monica was being recorded.
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). 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).
A. Admission of Propensity Evidence
Petitioner's first claim is that the trial court violated his Fourteenth Amendment rights to due process and equal protection, and abused its discretion under state law, when it admitted into evidence prior acts of misconduct to show petitioner's propensity to commit sex offenses. (Points and Authorities attached to Petition, (hereinafter Pet.) at 11- 24.) Specifically, petitioner objects to the admission of evidence regarding the incidents with Kimberly Sable and Esther Cortes and the e-mails between himself and the victim. The California Court of Appeal rejected petitioner's arguments with respect to these claims, reasoning as follows:
Over defendant's objection, the trial court admitted testimony by Kimberly Sable and Esther Cortes of defendant's prior uncharged conduct and e-mail correspondence between Monica and defendant posing as "John Jones." The court determined the evidence was admissible pursuant to Evidence Code section 1108 to show propensity to commit sexual crimes, and Evidence Code section 1101, subdivision (b), to show intent. The court also ruled the evidence was not unduly prejudicial under Evidence Code section 352. Defendant argues the trial court's rulings violated his constitutional rights to due process and equal protection. We disagree.
A. Due Process Challenge to Evidence Code Section 1108
Defendant contends admitting evidence pursuant to Evidence Code section 1108 to show propensity to commit sex offenses violated his federal constitutional right to due process.*fn2 However, the California Supreme Court held Evidence Code section 1108 does not violate due process. (People v. Falsetta (1999) 21 Cal.4th 903.) As defendant recognizes, we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 .)
B. Equal Protection Challenge to Evidence Code Section 1108
Defendant asserts admitting evidence pursuant to Evidence Code section 1108 violated his federal constitutional right to equal protection because the statute treats those accused of sex offenses differently from those accused of other crimes. Defendant's assertion fails. "An equal protection challenge to a statute that creates two classifications of accused or convicted defendants, without implicating a constitutional right, is subject to a rational-basis analysis. [Citation.] [¶] Evidence Code section 1108 withstands this relaxed scrutiny. The Legislature determined that the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendant's commission of other sex offenses. This reasoning provides a rational basis for the law . . . . In order to adopt a constitutionally sound statute, the ...