FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2002 judgment of conviction entered against him in San Joaquin County Superior Court on two counts of forcible rape and one count of forcible oral copulation, with findings that petitioner's acts involved multiple victims; that during the commission of one of the rapes and the oral copulation petitioner kidnapped the victim, used a deadly weapon, and bound the victim; and that during the commission of the second rape petitioner used a deadly weapon. Petitioner seeks relief on the grounds that: (1) the evidence was insufficient to support his conviction on one of the rape counts; (2) the trial court's admission into evidence of prior sex crimes committed by petitioner violated his right to due process and equal protection; and (3) jury instruction error violated his right to due process. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
I. Procedural and Factual Background*fn1
A jury found defendant Jose Soto guilty of rape and forcible oral copulation of victim J.D., with special findings that he kidnapped, tied or bound the victim, and was armed with a knife during the commission of these crimes. The jury also found Soto guilty of the rape of victim Q.D., with a special finding that he was armed with a knife. Finally, the jury found that defendant committed a sex crime against separate victims within the meaning of Penal Code section 667.61, subdivision (b)(e)(5).
After the court found a prior felony conviction to be true, defendant was sentenced to state prison for an aggregate term of 80 years to life under the three strikes law. He appeals, challenging the sufficiency of the evidence to support one of the rape convictions and claiming instructional error and improper admission of prior sex crimes under Evidence Code section 1108.*fn2 We will reject these arguments and affirm the judgment.
In November 1999, 22 year-old Q.D. was working at night as a prostitute in Stockton when defendant drove up and offered her $200 for a "date," to take place at defendant's house in Lathrop.
They drove for about 45 minutes until they got to his house which was in the back of a small appliance store. As soon as they walked in the door, defendant used a key to lock the dead bolt lock from the inside, which made Q.D. nervous.
Once inside the bedroom, Q.D. asked for her money. In response, defendant pulled out a knife with the blade exposed and ordered her to take her clothes off.
Complying with defendant's instructions, Q.D. disrobed and got on the bed. Defendant then took his pants off and had vaginal intercourse with Q.D. for about 30 minutes. He then ordered her to roll over onto her stomach and penetrated her anally for 30 more minutes.
Q.D. told defendant she had to urinate, and she was allowed to go to the bathroom. While she was in the bathroom, defendant asked if he could take pictures of her naked. At that point, Q.D. broke open the bathroom window with a chair and started screaming for help. A few seconds later, defendant opened the door with a shocked look on his face and told her to stop screaming. She asked "Can I go?" and he replied "You can go, you can go." Q.D. put on her pants and carried her jacket with her as she ran out to the street. A neighbor found her distraught, frightened, naked from the waist up, yelling she had been raped, and that "He's got a knife." The neighbor allowed Q.D. into her home, where she dialed 911.
Q.D. positively identified defendant from a photographic police lineup. Sheriff's deputies searching defendant's house recovered a black folding knife, Polaroid film, rope, and duct tape from a dresser near his bed.
Around 4:00 a.m. on June 30, 2001, 22 year-old J.D. was picking up cigarette butts and disposing of them in a garbage canister outside her residence in Lathrop. Defendant walked by and asked her for directions to a street called Warfield. Because defendant seemed confused, J.D. led him down the street and was pointing out directions, when defendant grabbed her by the neck and pushed her up against a fence in a nearby driveway. He tried unsuccessfully to rip off J.D.'s pants, then decided to push her toward a less conspicuous spot next to a church. As he did this he held a knife to her throat and told her to "stop fucking around."
At defendant's direction, J.D. removed her clothes while he held the knife to her throat. Defendant took J.D.'s shirt and tied it around her head, asking her if she could see anything. J.D. replied she could not and assured him she was "positive," after he asked her again.
Defendant ordered her to spread her legs and penetrated her vaginally. When he was finished, defendant forced her to orally copulate him for a short time.
Telling J.D. he had a "better idea," defendant then ordered J.D. to roll over on her hands and knees. He put all his weight on top of her and stayed in that position for a couple of minutes, then suddenly got up and fled.
Pursuant to section 1108 the prosecution was permitted to introduce two prior uncharged incidents of sexual misconduct committed by defendant on February 24, 1997.
Late that night defendant, who was then 25 years old, together with 14-year-old A.F., and a third person, robbed a BP gas station and convenience store in Lathrop. Wearing masks, the robbers ordered the store clerk, B.D., to the floor where they bound her arms, legs, eyes, and mouth with duct tape. After going through B.D.'s purse, defendant took out a knife, cut her sweater and bra open, sucked one of her breasts, and fondled the other.
Later that night A.F. and defendant met at a community center in a park to divide the stolen property. While at the park, defendant started kissing A.F. and grabbing her breasts. He pushed her down on the grass and tried to remove her clothes. Having managed to half undress A.F., defendant inserted his penis in her vagina, despite her pleas to get off her. A.F. escaped and began running.
Defendant caught up with her and demanded oral sex. A.F. complied because she wanted to go home. At one point, defendant pulled out a buck knife and some rope, telling A.F. that if she got out of hand he would have to tie her up. A.F. played with the knife, but defendant quickly grabbed it away from her.
The jury was advised that in 1997, defendant pled guilty to "one count of lewd act with a child, fourteen or fifteen years of age, . . ." as well as robbery.
Defense Defendant did not testify. His mother and father took the stand and gave testimony supporting the inference that their son did not leave their house the night of the attack on J.D.
Petitioner's judgment of conviction was affirmed by the California Court of Appeal in a reasoned decision dated July 17, 2003. Resp.'s Lodg. Doc. D, Ex. A. On August 27, 2003, petitioner filed a petition for review in the California Supreme Court, which was ...