The opinion of the court was delivered by: Honorable N. Randy Smith Ninth Circuit Court of Appeals Judge
In his amended petition for writ of habeas corpus, Pierce raises four claims. For the reasons discussed below, petitioner's claims are DENIED IN PART, GRANTED IN PART, and the case is REMANDED to the state trial court for resentencing.
The following recitation of the factual background of this case is based on the decision of the Court of Appeals of California rejecting petitioner's direct appeal, People v. Pierce, No. C044205, 2005 WL 1230783 (Cal. Ct. App. May 23, 2005). The state court's factual determinations are presumed to be correct pursuant to 28 U.S.C 2254(e)(1).
The victim in this case was born in November 1983. Her mother, Amy, met defendant, they cohabited for about a year and a half and they married in 1987. Defendant and Amy had a daughter in 1988 (Amanda) and another in 1989 (Molly). Defendant was in the Air Force and the family lived in Florida until he was transferred to Aviano Air Force Base in Italy in 1990, where the family lived in a hotel and then in a house. In January 1993, he was transferred to McClellan Air Force Base and the family lived on base. Later that year, defendant resigned and the family moved to Illinois. They first lived with defendant's relatives, but conditions were crowded and early in 1994 they moved to a house of their own. In the summer of 1994 the family moved to Orangevale, and defendant worked at McClellan as a civilian. When the base was scheduled to close in 1999, defendant found a job at a base in North Carolina and the family moved. It was there that the abuse came to light.
B. Uncharged Acts Against the Victim
In Italy (1990-1993), the victim sometimes would wake up and see defendant standing near her bed, sometimes without pants on, sometimes touching his penis. When the family moved to McClellan Air Force Base in 1993, when the victim was nine, defendant would go into her room and touch her breasts and genitals, and have her stroke his penis and suck on it. She "would cry but... never told him no" because she "was always scared of what would happen." He would force her head to his penis with his hand. Defendant "always told me that I can't ever tell anybody." When the family lived in Illinois (1993-1994), when the victim was 10, similar abuse took place. Although the house was crowded, defendant would wake her up at night and tell her to go into the bathroom with him. Once, in Illinois, defendant tried to have intercourse with her, but when he tried to push his penis in she cried and told him it hurt and he stopped; however, the victim later found blood in her underwear and told her mother that she had started menstruating. Amy testified that the next day the victim told her she was not menstruating. Amy testified that once, defendant closed their bedroom door and went into the victim's room; she followed and found him crouched in his underwear next to the victim's bed. He claimed he was just "checking" the kids and although Amy was suspicious, she did not want to make an accusation against him.
C. Count 1; Continuous Sexual Abuse (§ 288.5)
When the family moved back to the Sacramento area in 1994 when the victim was 10, she had her own bedroom and her half-sisters shared a bedroom. Until she turned 12 in 1995, defendant again fondled her and licked her vagina, and had her suck his penis; he again tried to have intercourse with her. Sometimes he had sexual contact with her a couple times in a week, other times less than monthly. "He would tell me exactly what he wanted me to do, but as I got older, he would get mad at me if I didn't just do it on my own." He would force her head down so she would suck his penis; sometimes she would cry. More than once he told her he would hurt her or her mother if she told anybody, and he was both vocally forceful when he said it and sometimes physically forceful in that "[h]e would squeeze the back of my neck" with his hand when he threatened her. "[I]f I ever didn't do something right away, or I was hesitant about it, he would get mad" and "use a strong voice and tell me I better do it" which made her scared. She believed the threats because he slapped the children when they did things wrong. On redirect examination she testified that when she was younger and got in trouble for ordinary things, he would take her in her room and spank her "[b]ut then it would turn into a sexual act right after that." "When I was older, I didn't get the spankings, because I was older. But I did get hit on my head or on my butt if I was crying too loud, or if I didn't do what he told me to do right away." The neck-grabbing happened during and after sexual contact.
D. Counts 2-6; Forcible Lewd Acts (§ 288, subd. (b))
Between November 1995 and November 1997, when she was 12 to 13, the victim sucked defendant's penis monthly. He made her shave her pubic hair a few times, and when he licked her vagina and she had orgasms he would say she liked it, which made her cry. He sometimes rubbed his penis between her breasts and ejaculated onto her. He made her watch pornographic videos and act out what was depicted, such as sucking his penis. He tried to have intercourse with her a few times and told her she was acting like a baby and might be a lesbian when she did not want intercourse or cried from the pain when he tried to enter her; in her view, "I felt like his penis was too big to go into my vagina." During this time he continued to threaten to hurt the victim or hurt her mother if the victim told anyone about the abuse.
E. Counts 7-12; Forced Oral Copulation (§ 288a, subd. (b))
After the victim turned 14, the same abuse took place. Defendant again would grab her neck and threaten her. When she cried during sexual acts he would slap her on the bottom or face and tell her to shut up. He rewarded her with driving lessons if she sucked his penis while he drove. She sucked his penis at least 10 times and he licked her vagina at least 10 times during this period.
F. Counts 13-18; Forcible Lewd Act (§ 288, subd. (c)(1))
Also, after she turned 14, defendant fondled the victim's breasts over 10 times, touched her vagina and tried to have intercourse with her more than once, but he was never able to fully vaginally penetrate her. Sometimes if she did not suck his penis the way he wanted her to he would threaten to "put his penis inside of me [i.e., her vagina] whether I wanted it or not."
G. Gaining Access to the Victim
Defendant was sometimes able to do these things by making the other girls stay in their room for long periods for minor infractions, or making them take long baths together. Sometimes when Amanda would ask if she could leave her room to go to the bathroom, defendant would sternly tell her to stay where she was, and his voice came from the victim's room. Amanda sometimes heard the victim crying during punishment; once the victim told Amanda that he was helping her with homework. Defendant said the same thing, but he never helped the other girls with their homework. Once, Amanda came in to the victim's room and found her on the floor, crying, with defendant standing over her, wearing only shorts. Molly, too, sometimes saw defendant near or coming out of the victim's room during punishment periods. The other girls had learned to obey defendant. Amanda sometimes saw defendant hit her mother, Amy, across the face. Amy testified she disagreed with defendant's discipline methods: "I didn't like them to be slapped in the face" and "I didn't like him to get in their face and scream loudly at them." Amanda and Molly complained to their mother about the long punishments defendant imposed.
H. Discovery of the Abuse
On the trip to North Carolina the family stayed at some hotels; once on the way, and once in a North Carolina hotel, defendant had the victim suck his penis while Amy showered and the other girls slept. About a month after the family moved into a house in North Carolina, on September 26, 1999, Amy found the victim was upset because she had wanted to talk to a friend of hers named Richard, but defendant was making fun of his name, calling him "Dick" and saying "the victim likes Dick"; although Amy told defendant that was inappropriate, he just laughed. Amy then took a shower. Defendant began to feel the victim's breasts. Amy left the shower when she heard the victim crying and saying "stop"; she came out of the shower and saw defendant's "hands come out of the front of [the victim's] t-shirt as soon as I opened the door." The victim then told her mother that defendant had been "molesting" or "abusing" her either "since I was six" or "for as long as I can remember." Defendant had gone downstairs; after he called up to Amy from downstairs and said that he was not armed and would not hurt her, Amy went partway downstairs and told him to leave. Meanwhile, the victim had dialed 911. At about that moment, defendant told Amy the only reason he married her was because of the victim. The police then arrived and subsequently drove defendant to a motel. Defendant called Amy that night and said the victim was lying; rather than denying he had abused or harmed the girl, he denied intercourse in a vulgar and callous way, telling the victim's mother "I never f---ed that kid." A few days later, the rest of the family packed up and moved to San Antonio, Texas. There, the victim went to a children's advocacy center and prepared a written statement outlining the abuse she had suffered, though she did not "go into extensive detail" in that statement. She prepared a statement for Texas authorities which also did not go into detail.
I. Inculpatory Statements by Defendant
In December 1999, defendant spoke with Cumberland County, North Carolina Detective Frank Pierce (no relation) and admitted reading the victim's diary. During the conversation he related an incident when he had left a "Dear John" letter and left the house; he told Amy "the only reason I got back with you and the only reason I married you was because of that child." He was arrested about a month later, in January 2000, in North Carolina. While defendant was awaiting trial, Pierce re-arrested him on a California warrant in December 2000. While being transported, defendant told Pierce: "I know what I should have done. The [B]ible says if you penetrate her and she doesn't bleed, then you kill her." Defendant testified this garbled what he said, which was a reference to a specific biblical passage (Deuteronomy 22:13-21) prescribing stoning of a bride who is found not to have been a virgin, by the failure to produce a bloodstained cloth, and he was referring to the medical evidence from San Antonio, to the effect that the victim's hymen was intact.
Amy later discovered that during their marriage defendant had accessed several pornographic websites on their home computer which, by their titles, offered pictures of young women or women without pubic hair. Amanda testified that she once saw her father looking at pornographic images of teenage girls on the family computer.
Cathy Boyle, a nurse with expertise in child sexual abuse, reviewed records from a nurse and doctor in Texas; the doctor had found the victim's hymen "normal," but the nurse whose work was reviewed had found it "obliterated." Nurse Boyle disagreed with both the doctor and the ...