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Abaca v. Subia

August 11, 2009

RASHEEM ABACA, PETITIONER,
v.
RICHARD SUBIA*FN1, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Rasheem Abaca, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner attacks his conviction in the Lassen County Superior Court, case number CR020026, for kidnaping, penetration with a foreign object, and two counts of forcible rape.

II. CLAIMS

Petitioner argues that:

A. The trial court erred by joining the trials of two separate rape charges; and

B. The trial court erred by failing to adequately instruct the jury.

Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be denied.

III. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts*fn2

Prosecution case

In January 2003, 16-year-old M.L. came to the United States from Mexico with her father and sister. M.L. found work selling strawberries at a stand in Rio Linda. M.L. has an elementary school education, has never been married, and speaks no English. On a normal day, the strawberry distributor took M.L. to the stand by 11:00 a.m., where she would sell strawberries alone for the day, and picked her up by 5:00 or 6:00 p.m.

In April 2003, defendant and Marisol Barbero stopped at the stand and defendant bought strawberries. At the time, BarberoFN was working as a prostitute for defendant, whom she described as her pimp. It was defendant's idea for Barbero to enter prostitution and when she had tried to leave, he became aggressive and threatened to kill her.

FN. Barbero testified on behalf of the prosecution pursuant to a grant of immunity.

After leaving the stand, defendant told Barbero he wanted M.L. to work for him. At defendant's direction, they went back to the strawberry stand that day, where Barbero, who spoke broken Spanish, invited M.L. to dinner and offered her a job. M.L. said she needed her sister's permission. Barbero handed M.L. her cellular phone, but the sister denied permission. Defendant and Barbero left. By now it was raining or cold and they came back again. This time M.L. accepted the offer of a ride home because her ride had not arrived.

Instead of taking M.L. home, defendant picked up his father and drove them five hours to his father's house in Herlong. M.L. had grown very afraid. At the house, defendant's father went to the living room. Barbero and defendant went to the bedroom and Barbero told M.L. to sleep with them. She said, "no." Defendant made Barbero go into another room. M.L. pleaded to go with Barbero but defendant refused. Defendant left to have a drink with his father and, when he returned, M.L. had moved into the other bedroom with Barbero. Defendant forced M.L. to return to the first room where he told her that she needed to have sex with him. When she told him "no," defendant repeatedly slapped her on the face. He then removed her clothes. M.L. ran out of the room and clutched onto Barbero, who refused to help her. Defendant foiled M.L.'s escape attempt via a bathroom window. Again alone with M.L. in the first room, defendant took off his clothes, laid on top of her with an erect penis, licked his finger and put it in her vagina approximately three times. Screaming, M.L. tried to grab defendant's penis. Defendant slapped her again.

Defendant decided to take M.L. back to the car. Defendant laid her down in the back seat, put his finger in her vagina, and despite her efforts to fight him off, put his penis in her vagina. Defendant took M.L. back to the room, refused to let her get dressed or take a shower, and forced her to lie down on the bed, where she slept. The next day, defendant told M.L. he would take her home. Instead, he drove her to an abandoned house. When she tried to get out of the car, he pulled her by the hair and forced her back in. After another struggle, she successfully opened the door and started running. Defendant caught up to her when she fell down. Defendant put his foot on her neck, choked her, and hit her on her mouth and head, causing one of her teeth to discolor. He repeatedly told her she was stupid. He put her in the trunk of the car and drove back to his father's house.FN When they arrived, he left her in the trunk but offered her food through a hole in the back seat, which she refused.

FN. Barbero testified she was at the father's house when the two arrived and M.L. was, indeed, in the trunk of the car.

After five or 10 minutes, defendant drove M.L. back to the abandoned house. When they arrived, he moved M.L. into the back seat, called her stupid, showed her his fist, and raped her again. When he was done, he wiped his penis with her underwear and left it at the abandoned house. He put her back in the trunk and drove two hours to Reno.

When they arrived, defendant moved her to the front seat and said if she talked to police they would take her back to Mexico.FN Defendant pulled up along side one Claudia Ramirez who was walking on the sidewalk. Defendant told Ramirez that M.L. needed help. Ramirez noticed M.L.'s face was injured. M.L. got out of the car and told Ramirez that defendant had raped her, hit her, and stolen her money. As defendant drove away, M.L. wrote down defendant's license plate number. Ramirez called the police.

FN. M.L. had entered the United States illegally.

The police took M.L. to the hospital where a physical exam was performed. M.L. had very slight swelling on her forehead, bruising around her eyes and chin, swelling on her right cheek, redness and bruising on her chest, very faint bruises on her arms, and small scratches on her back. She had profound bruising on the outside and inside of her vaginal area. The examining nurse, who was trained to recognize indicia of sexual assault, opined that M.L.'s injuries were consistent with nonconsensual sex.

M.L. was able to show police the location of defendant's father's house, the abandoned house, and the stops she and defendant made in Reno. Outside the abandoned house, the police found M.L.'s underwear.

Defendant drove back that evening, picked up Barbero, and took her to Reno to work as a prostitute. Defendant told Barbero he had fought with M.L. and had injured his knuckles when he hit her after she had grabbed his private parts. While in Reno, they met a girl named E.C. who directed them to the Diamonds Casino where there were a lot of "tricks." Defendant drove E.C. and Barbero to the casino. Defendant later dropped off Barbero at the Show Girls parking lot while E.C. remained with defendant in the car. According to Barbero, after E.C. had spent a few days with defendant, she also became scared of him. Barbero did not witness events between defendant and E.C., and did not know whether "it" happened because E.C. exaggerates a lot.*fn3 A few days after the incidents involving M.L., the police located defendant. When interviewed by police, defendant said he took M.L. to his father's house because he was going to marry her. He did not respond when police said that would be ridiculous since he had just met her six hours before. He said they started having consensual sex in the bedroom and then moved to the car. He did not respond when the police asked why they would have moved from the bed to the car, as the bed would have been more comfortable. When confronted with the injuries that M.L. had sustained, defendant admitted hitting M.L.

Defense

Aloda Abaca, defendant's father, Charles Loney, a handyman who visited the duplex in which defendant's father lived, Jerry Johnson, a close childhood friend of defendant's, and John Baros, who lived next door to defendant's father, were present at the father's house with M.L. M.L. was not injured, did not seem upset, and was not screaming.

Defendant testified that he stopped by the strawberry stand many times that day and decided to help M.L. because she had been working all day. With Barbero translating, defendant invited M.L. to a "rave" party. They concocted a story to tell M.L.'s sister. They drove to his father's house, where they drank alcohol and M.L. put on makeup. Defendant started flirting with M.L., who returned his affection. Barbero told him that M.L. was a virgin and that she might become attached to him if they had sex. Defendant told Barbero, who was jealous, that he was not concerned. Defendant orally copulated M.L. in a bedroom. Defendant did not want to have sex with her in the bed because he ...


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