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Clark v. Subia

May 27, 2010

SYLVESTER CLARK, PETITIONER,
v.
RICHARD SUBIA, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Ronald B. Leighton United States District Court Judge

ORDER

This matter comes before the Court on Sylvester Clark's petition for a writ of habeas corpus. For the following reasons, the Petition is DENIED.

I. BACKGROUND

This statement of facts is taken from the unpublished opinion of the California Court of Appeal, Third District.*fn1

Defendant moved to Sacramento in 1996 and lived with his brother, Ozell Clark, and Ozell's wife and children. In early 1997, defendant, a mechanic, was introduced to a woman, R.C., who needed her vehicle repaired. The two became good friends.

At the time she met defendant, R.C. was the mother of four-year-old K.C., who suffered from a learning disability. R.C. attended school during the day and worked as a nurse's assistant in the evening, so she often needed a babysitter for her son. Generally, R.C.'s brother, Lamont, and his fiancée, Bridget, would watch K.C. However, beginning in 1997, defendant babysat K.C., both at R.C.'s apartment and Ozell's home. This continued until approximately 1999 when R.C. met Vincent, whom she later married. R .C. estimated that defendant babysat K.C. three to four times at her home and five times at Ozell's home. However, defendant testified he babysat K.C. "way more than five times" at Ozell's house.

In April 2002, R.C. and K.C. were in the car when K.C. suddenly disclosed defendant had sexually abused him. K.C. told his mother that defendant had "put his penis in his rectum." Following K.C.'s disclosure, R.C. called the police to file a report. She then took K.C. to his physician, Dr. Dennis Stobie. R.C. also took K.C. to the Multi-Disciplinary Interview Center (MDIC), where K.C. was interviewed by Kim Berardi regarding his allegations against defendant. The MDIC interview was recorded by Detective Vonda Walker.

Both R.C. and K.C., who was 10 years old at the time of trial, testified against defendant. R.C., who testified before K.C., recited how she and defendant met, where she lived with K.C., and what K.C. told her about the allegations. K.C. testified that defendant put his penis in his anus. K.C. both explained and demonstrated how defendant sexually abused him. K.C. said the abuse occurred twice at Ozell Clark's home, both times on the living room floor. K.C. testified he tried to get away from defendant, but defendant "scooted" him back to the floor. According to K.C., defendant told him "not to tell anyone." K.C. also described two more incidents of sexual abuse that occurred at R.C.'s apartment in which defendant sexually abused him. K.C. was not asked any questions about his statements to the police, to the MDIC interviewer, or to Dr. Stobie. However, K.C. was asked about disclosing the abuse to his mother. After K.C. testified, the prosecution called three more witnesses: Officer Erik Peterson, who responded to the police call by R.C.; Detective Walker, who observed and recorded the MDIC interview; and Dr. Stobie, who examined K.C.

Officer Peterson, a patrol officer, testified that on April 5, 2002, he responded to R.C.'s home to take a sex crime report. Officer Peterson usually emphasizes to children the importance of telling the truth, though he was unable to recall specifically if he explained it to K.C. K.C. then identified himself as a sexual assault victim, and identified his perpetrator as "Sylvester," his mother's friend. K.C. told Officer Peterson the abuse occurred when he was five, six, and seven years old and that it occurred ten times. K.C. explained that defendant put his private parts in his anus. K .C. explained to Officer Peterson that it hurt, he was scared, and he thought the incidents were disgusting. After Officer Peterson took statements from K.C. and R.C., he prepared a report and submitted the report to his sergeant.

Officer Walker, an investigative detective for the sexual assault child abuse unit of the Sacramento Police Department, testified regarding K.C.'s case. As part of her duties, Officer Walker recorded both the audio and video of the MDIC interview. The MDIC interview tape was also played for the jury.

The MDIC interview was conducted on April 26, 2002, by Kim Berardi. Berardi asked K.C. a series of questions about his background, such as what grade he was in. When questioned whether he was told what to say in the interview, K.C. stated that defendant told him not to tell anybody about the abuse. K.C. continued to describe the abuse that occurred when he was five, six and seven years old. K.C. did not know how many times the abuse occurred. But K.C. was able to describe several of the incidents. K.C. explained that he had not come forward before because he had "just remembered," and that when he was five years old, he was not able to speak.

Dr. Stobie, a general pediatrician at Kaiser, met with K.C. on April 16, 2002. R.C. recited to Dr. Stobie the history of K.C.'s complaint, and Dr. Stobie noted it in K.C.'s medical chart. The history included that K.C. had told his mother that he had been sexually abused by a former babysitter from the ages of five to seven. R.C. further stated that K.C. was told not to tell, but Dr. Stobie did not record who told him not to tell. Dr. Stobie performed a physical examination of K.C. and found no signs of abuse which, according to Dr. Stobie, was not inconsistent with K.C.'s allegations given the lapse of time between the abuse and the medical examination. As required, Dr. Stobie filled out a sexual abuse form, in which he recited in the summation that K.C. stated defendant "put his private parts in my bottom."

After a jury trial, Petitioner was convicted on May 9, 2003 of one count of sodomy by force or fear and three counts of lewd and lascivious acts with a minor under the age of fourteen. On July 25, 2003, he was sentenced for fifteen years to life on count one, and a total of twelve consecutive years on counts two through four. Petitioner appealed his convictions. The California Court of Appeal, Third Appellate District, affirmed. The Supreme Court of California denied review. Petitioner brought this 28 U.S.C. § 2254 petition for a writ of habeas corpus, raising five grounds for relief.

The Court has considered the record relevant to the grounds raised in the petition. For the reasons discussed below, Petitioner's habeas petition is denied and the resulting action dismissed.

II. Claims for Relief

Petitioner seeks relief upon five grounds. First, he asserts that his Sixth and Fourteenth Amendment rights to due process and to a "meaningful opportunity to present a defense" were denied when the trial court excluded his extra-judicial statement. Second, Petitioner asserts his Sixth Amendment right of confrontation was impaired when the victim's extra-judicial statement was introduced against Petitioner after the victim had testified and been released by the trial court. Third, Petitioner asserts that his Sixth Amendment confrontation rights were violated when the trial court permitted an allegedly incompetent child witness to testify. Fourth, Petitioner claims that the trial court's jury instructions violated his Fourteenth Amendment right to have every fact necessary for conviction established beyond a reasonable doubt. Finally, Petitioner asserts that his Sixth Amendment right to trial by jury was violated when the trial court imposed an upper term of eight years for the principal term of Petitioner's determinate sentence.

III. DISCUSSION

Federal courts review of habeas claims from those held in custody under a state court judgment are governed by 28 U.S.C. §§ 2254. Accordingly, this Court may grant the petition "if the adjudication of the claim 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." 28 U.S.C. § 2254 (d)(1). The Supreme Court holdings at the time of the state court decision will provide the "definitive source of clearly established federal law." Van Tran v. Lindsey, 212 F.3d 1143, 1154 (9th Cir. 2000), overruled in part on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003). A state-court decision is contrary to clearly established precedent if it "applies a rule that contradicts the governing law set forth in" a Supreme Court decision, or "confronts a set of facts that are materially indistinguishable" from such a decision and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3 (2002) (quoting Williams v.Taylor, 529 U.S. 362, 405--06 (2000)).

A. First Claim- The Extra-judicial Statement

On October 29, 2002, Detective Buck interrogated Petitioner. Although there was in fact no DNA evidence of sexual assault, Detective Buck asked Petitioner why the victim's DNA would have been found inside K.C.'s buttocks. Petitioner's responses to questioning suggest that he was surprised and outraged the accusations, and befuddled as to why there would be DNA evidence. When confronted with these allegations Petitioner responded, "man you can give me a lie detector test right now, dude." Throughout the interrogation, Petitioner consistently denied the allegations of abuse.

On direct examination at trial, Petitioner testified that he had no opportunity to commit the crimes because he was never alone with the victim. Defense counsel did not elicit, and petitioner did not offer, any information about Detective Buck's questioning.

On cross-examination, the prosecutor elicited from Petitioner admissions that when Detective Buck interrogated him, he did not notify Detective Buck of his lack-of-opportunity defense. Petitioner testified that the reason he failed to give Detective Buck the names of potentially exculpating witnesses or inform him he had never been alone with the victim was because Detective Buck never specifically asked him for this information. On redirect examination, defense counsel sought to introduce the portion of the interview which Detective Buck falsely told Petitioner that there was DNA evidence. The prosecutor objected. The trial court sustained the objection, told the jury to disregard the question, and ordered it stricken from the record. Outside the presence of the jury, the prosecutor argued that the defense was attempting to impeach Detective Buck's questioning technique by introducing evidence that the detective had used deceitful tactics when he made false claims that there was DNA evidence. The prosecutor contended that the DNA was not the same subject broached by the prosecutor on ...


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