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Tapia v. Small

July 31, 2010



Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on May 24, 2005, in the San Joaquin County Superior Court on charges of kidnapping, forcible rape, and making criminal threats. Respondent has filed an answer to the petition and, pursuant to court order, a motion to dismiss. Upon careful consideration of the record and the applicable law, and for the reasons discussed below, the undersigned will recommend that both the motion to dismiss and petitioner's application for habeas corpus relief be denied.


In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

According to the victim, she had met the defendant in December 2002 and dated him until mid-February 2003, at which point she decided to distance herself from him. As she vaguely described it, he made remarks that left her feeling uncomfortable although not afraid for her safety. Their relationship included sexual intimacy. On the occasion of her 37th birthday in March 2003, she went to a Lodi dance club to meet friends and relatives. She saw the defendant. She claimed at trial that his presence was unwelcome, and denied making any plans to meet him there. After a couple of beers, she found herself feeling unusually lightheaded.*fn1 When her cousin refused her request to take her home, she acceded to the defendant's offer to drive her, in her car, back to her house, where a friend would pick him up.

It was difficult for her to focus while they were driving. At some point, she realized the defendant was traveling on the freeway in the opposite direction from her home. When she called this to his attention, he became violent; he struck her, and also threatened her with death. She calmed down because she did not want him to lose control of the car.

They eventually arrived at the defendant's residence, which was about 20 minutes from the freeway in Herald. He lived in a trailer about 50 feet behind two mobile homes on a horse ranch where he worked. They struggled when they got out of the car. She screamed for help, but no one responded. When he began to choke her, she lost consciousness.

Her next memory was of lying on the floor in the kitchen area of the trailer. She could hear the defendant swearing in the next room. Her skirt was up, her underwear was down around her thighs, and her boots were off. Her vagina was sore.

The defendant approached her. As he stood over her, he told her that she was "dirty" and "was going to die," at which point he hit her on the head with a frying pan. She blacked out again.

When she recovered her senses, it was already light outside. She heard the defendant snoring in the other room. She quietly gathered up her things and went outside, looking for her keys that had been lost in the struggle. Retrieving them, she got in the car and tried to call 911, but did not have a signal on her cell phone. She did not bother going to the other residences because no one had come to her assistance earlier. She started the car and drove off just as the defendant was coming out of the trailer. She stopped near the freeway and was able to call for help.

She did not know whether the defendant ever had intercourse with her. However, she had not at any point consented to having sexual activity with him the night before. Investigators found sperm and semen in the victim's vagina matching the defendant's genetic profile, though it is not possible to establish how long it had been present. The treating physician found an abrasion inside her labia majora consistent either with consensual or nonconsensual intercourse; it could have been anywhere from a few hours to a couple of days old. He did not notice any injuries to her head other than some contusions and abrasions.

The victim received a voice message on her cell phone from the defendant shortly afterward. He stated that he loved her and asked for her forgiveness.

The defendant admitted having convictions in 2001 for child endangerment and making criminal threats. After his testimony, the prosecutor called her final witness, who was the defendant's former cohabitant (and mother of his two sons). In 2001, he had tried to stab her and her daughter when he was drunk, and had threatened to kill them.


The victim admitted that she had difficulty remembering anything else from her birthday other than the above-related events because she avoided thinking about that day. (The trial took place two years later.) She did not remember making any statements to investigators about her activities earlier on her birthday, even after reviewing their reports, and she denied ever telling the emergency paramedics that a group of farm workers had attacked her after meeting her at a bar.

According to a deputy sheriff who interviewed her at the hospital, the victim said that she had gone to dinner and a movie with the defendant and her son before eventually going to the dance club. She began to describe the circumstances of the evening when he stopped her account because it was a crime that began in the jurisdiction of the Lodi Police Department and concluded in Sacramento County. She had not mentioned any sexual assault before he stopped questioning her.

The police officer who took over the interview testified that the victim described making breakfast for the defendant and her son on the morning of her birthday and spending the rest of the day with the defendant. This included dinner at Tony Roma's and a movie, after which they dropped off the victim's son before going dancing. She had asked the defendant to drive her home from the club because she felt unusually dizzy. Her account otherwise tracked her testimony, other than the inclusion of an additional memory in which she recalled the defendant pulling her underwear down before she blacked out again. She did not describe having any consensual sexual encounters with the defendant over the course of the weekend preceding her birthday.

In light of the reports of the investigators, the prosecutor admitted that the victim's memory "just isn't good" for the other details of that day. She argued, however, that this was simply a genuine failure of memory about trivial matters that paled in comparison with the impact of the victim's consistent account of the attack at the trailer.


The defendant claimed that he had spent the entire weekend with the victim before her birthday. On the night before, they had engaged in consensual intercourse (during which the defendant had ejaculated four times in her vagina). They spent the next day together with her son, eating at Tony Roma's and seeing a movie. They returned to her home and, after her son left with friends, again had consensual intercourse that ended with the defendant ejaculating in her vagina.

They went to the dance club. The victim eventually told the defendant she had an appointment the next morning and they should leave. She drove them to the defendant's trailer, where she had intended to spend the night. When they parked, she began to castigate him about the attention he received from two women at the bar. She struck him repeatedly. In defending himself at the entrance to the trailer, he pushed her away and she fell down the stairs. She pursued him inside, where she continued her attack on him and he tried to defend himself. Eventually, they went to sleep. She was still there when he awoke, and was still angry at him. She left without further incident. He denied having any sexual relations with her while she was at the trailer.

According to one of the emergency paramedics that treated her, the victim said that she had met several farm workers in a bar who attacked her on a ranch. He acknowledged that his report did not include anything to this effect, and that it was possible he was recalling a different incident. The ambulance driver did not recall the victim talking about farm workers attacking her.*fn2 A deputy sheriff who had responded to the location where she had parked ...

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