The opinion of the court was delivered by: Jeremy Fogel United States District Judge
ORDER*fn1 DENYING PETITION FOR WRIT OF HABEAS CORPUS
On April 27, 2004, a jury convicted Petitioner Ray Richard Renfro ("Renfro") of three sex crimes against the minor son of his live-in girlfriend: count one, lewd and lascivious acts with a child under the age of fourteen (Cal. Pen. Code § 288(a))*fn2 ; count four, oral copulation with a child age sixteen by a person at least ten years older (§ 288a(b)(1)); and count five, sodomy with a child age seventeen ( § 286(b)(1)). Renfro had a prior conviction for lewd and lascivious acts with a child (Cal. Pen. Code § 288(a)); that conviction was used as the basis for finding that Renfro was a habitual sexual offender within the meaning of § 667.71, that he had suffered a prior serious felony within the meaning of § 667(a), and that he was subject to the Three Strikes Law as contained in § 667(c)-(j). On June 15, 2004, the trial court sentenced Renfro to fifty years to life on count one with an enhancement of five years under § 667(a); and to the upper term of six years on counts four and five, all terms to be served consecutively. The judgment was affirmed in an unpublished opinion filed August 9, 2005. Renfro's petition for review was denied on November 16, 2005.
Renfro timely filed the instant habeas petition on February 21, 2006, asserting the following grounds for relief: (1) the trial court permitted the prosecutor to cross-examine Renfro on topics beyond the scope of direct examination, in violation of Renfro's privilege against self-incrimination; (2) and (3) the admission of prior bad acts violated Renfro's due process rights; (4) the trial court's improper admission of hearsay evidence violated Renfro's due process rights; (5) and (6) the trial court's use of CALJIC No. 2.50.01 violated Renfro's due process rights by permitting conviction solely based upon predisposition and misleading the jury regarding the prosecution's burden of proof; (7) and (8) the revival of a time-barred molestation claim pursuant to § 803(g) violated the ex post facto clause and due process clause of the United States Constitution; (9) the trial court improperly denied a jury trial on the aggravating factors, in violation of Renfro's constitutional rights; (10) the trial court denied a jury trial on the prior conviction, in violation of the Sixth Amendment; and (11) CALJIC No. 17.26 improperly directed a verdict, in violation of the Fifth and Sixth Amendments.
Where, as here, the habeas petition was filed after the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a petitioner: can prevail on a claim 'that was adjudicated on the merits in State court' only if he can show that the adjudication: (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.
Musladin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009) (citing 28 U.S.C. § 2254(d)).
"A state court decision will be 'contrary to' federal law if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or 'confronts a set of facts that are materially indistinguishable from' a Supreme Court case yet reaches a different result." Id. (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). "It will involve an 'unreasonable application of' federal law only if it is 'objectively unreasonable.'" Id. (quoting Williams, 529 U.S. at 409). The state court decision tested under these standards is the decision of the highest state court to provide a reasoned decision on the merits. Id. If the state court decision was contrary to, or involved an unreasonable application of, clearly established Supreme Court authority, the federal court must resolve the constitutional claim without the deference that the AEDPA otherwise requires. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008).
A. The Prosecutor's Cross-Examination Of Renfro Did Not Violate Renfro's Privilege Against Self-Incrimination (Ground 1)
Renfro was charged with molesting Steven, the son of his live-in girlfriend Margaret.
The molestation allegedly began when Steven was twelve and ended when Steven reported the sexual abuse after turning eighteen. According to Steven, the sex acts occurred with increasing frequency as he aged, occurred at least three times a week when he was sixteen and seventeen, and included oral copulation, mutual masturbation, and sodomy.
Renfro testified on direct examination that it was Steven who "kept coming on to him." Renfro admitted to sexual contact with Steven, but testified that such contact was initiated by Steven and began only after Steven turned eighteen. Renfro testified that after the sexual relationship began, Steven decided that he wanted Renfro to act as a father to him, and that Renfro and Steven threw away the sexual paraphernalia they had used together. According to Renfro, however, Steven "came onto" him again several days later, at which point Renfro told Margaret about the relationship.
On cross-examination, over Renfro's objection, the prosecutor questioned Renfro about prior acts of sexual molestation, including (1) an incident in which Renfro's then-wife caught him orally copulating a boy named Jim, aged twelve or thirteen, who was an overnight guest in their home, and (2) Renfro's long-term sexual molestation of his stepdaughter, Sarah, beginning when she was age nine and progressing to oral copulation and intercourse when she was age ten. The prosecutor had presented evidence of these prior molestations in its ...