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Barber v. Warden of the Substance Abuse Treatment Facility

September 15, 2010

ROBERT ELMER BARBER, PETITIONER,
v.
WARDEN OF THE SUBSTANCE ABUSE TREATMENT FACILITY, RESPONDENT.*FN1



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. He challenges a 2001 judgment of conviction entered against him in the Shasta County Superior Court on numerous counts of lewd and lascivious acts with minors. He seeks relief on the grounds that: (1) his prosecution violated his federal constitutional rights because it was "time barred;" (2) the trial court violated his right to due process when it failed to submit alternative verdicts to the jury; (3) the trial court violated the Ex Post Facto Clause and petitioner's right to due process when it admitted evidence of prior uncharged acts of sexual offenses; (4) his conviction with respect to two victims was not supported by sufficient evidence; (5) he received ineffective assistance of appellate counsel; and (6) his trial counsel rendered ineffective assistance when he failed to object to the prosecutor's use of false testimony, failed to cross-examine witnesses or call favorable witnesses, and failed to ensure that the jury instructions were "proper." 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

In its unpublished opinion affirming petitioner's judgment of conviction on appeal*fn2, the California Court of Appeal for the Third Appellate District provided the following factual summary:

The prosecution alleged defendant molested S.W., B.M., D.H., and M.O. between 1990 and 1996. We summarize the facts surrounding the alleged acts of sexual abuse where necessary to our discussion of sufficiency of the evidence.

The molestations came to light over a period of more than a year. Toward the end of 1996, B.M. told his girlfriend and mother what defendant had done to him. They reported the matter to the Shasta County Sheriff on December 17, 1996. Deputy Leonard Felter, a sex crimes investigator, talked with defendant on the telephone on January 6, 1997. Felter arranged to meet with him the next day, but defendant did not show up. Instead, he borrowed a truck from a friend on the pretext of visiting a sick friend in the Bay Area and fled to Mexico. Defendant telephoned Deputy Felter on January 16, 1997, and confirmed that he was in Mexico.

The district attorney filed a criminal complaint against defendant on January 24, 1997, for unlawful acts involving B.M. and D.H. in case No. 97-533. An arrest warrant issued. The complaint was later amended on April 1, 1997, to add a count involving the molestation of M.O.

In December 1997, S.W. and his girlfriend contacted the Shasta County Sheriff about the sexual abuse of S.W. by defendant. The district attorney filed a criminal complaint on December 19, 1997, in case No. 97-9186. The complaint alleged five counts of sexual molestation involving S.W.*fn3 An arrest warrant issued the same date.

In July 2000, Arizona investigators found defendant in Mexico, where he had been living under an assumed name. Investigators discovered defendant's true identity through fingerprint analysis.

Thereafter, defendant was arrested and returned to the United States with the assistance of Mexican authorities.

The district attorney filed an amended, consolidated complaint-deemed-information on November 16, 2000. The information included allegations involving all four victims, and increased the number of counts relating to S.W. Jury trial began on January 9, 2001.

On January 26, 2001, petitioner was convicted on all counts. Lodg. Doc. 1; Clerk's Transcript on Appeal (hereinafter CT), at 260-95. On March 8, 2001, petitioner was sentenced to 73 years in state prison. CT at 342-49, 352-55.

Petitioner appealed from his conviction to the California Court of Appeal for the Third Appellate District, claiming that: (1) there was insufficient evidence to sustain his convictions on counts 1 through 23, count 31, and count 32; (2) there was insufficient evidence to show the offenses charged in counts 1 through 23 and count 32 occurred within the applicable statute of limitations; (3) alternatively, counts 1 through 23 and count 32 should be remanded to the trial court for a hearing to determine whether they were time-barred; (4) the trial court erred in instructing the jury on the statute of limitations; (5) the trial court erred in failing to submit count 1 and counts 2 through 11 to the jury in the alternative; and (6) application of Cal. Evidence Code § 1108 to counts 1 through 27 and count 32 violated the prohibition against ex post facto laws. Lodg. Doc. 10, at 2. On November 27, 2002, petitioner's judgment of conviction was affirmed as to 28 counts and reversed as to 4 counts (1, 12, 13, and 32). Id.

On December 2, 2002, petitioner filed a petition for rehearing in the California Court of Appeal. Lodg. Doc. 11. That petition was summarily denied by order dated December 19, 2002. Lodg. Doc. 12. On December 27, 2002, petitioner filed a petition for review in the California Supreme Court. Lodg. Doc. 13. That petition was summarily denied by order dated February 11, 2003. Lodg. Doc. 14.

On August 26, 2002, petitioner filed a petition for writ of habeas corpus in the Shasta County Superior Court, claiming that he received ineffective assistance of trial and appellate counsel. Lodg. Doc. 15. That petition was denied on August 28, 2002, on the grounds that petitioner had named the wrong respondent. Lodg. Doc. 16. On September 9, 2002, petitioner filed a document entitled "Traverse" in the Shasta County Superior Court. Lodg. Doc. 17. The Superior Court ordered that the traverse be "marked received but not filed." Lodg. Doc. 18.

On October 24, 2002, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, claiming, among other things, that he received ineffective assistance of trial and appellate counsel. Lodg. Doc. 19. That petition was summarily denied by order filed November 14, 2002. Lodg. Doc. 20. On July 31, 2003, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, also raising claims of ineffective assistance of trial and appellate counsel. Lodg. Doc. 21. That petition was summarily denied by order dated May 12, 2004. Lodg. Doc. 22.

On December 6, 2004, petitioner filed his federal habeas petition in this court. Respondent filed an answer on October 24, 2005. Petitioner filed a traverse on February 24, 2006.

II. Analysis

A. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(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.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it 'confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

B. Petitioner's Claims

1. Prosecution Barred by State Statute of Limitations

In his first claim, petitioner argues that his prosecution violated the Double Jeopardy Clause and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because some of the charges against him were filed after the state statute of limitations had expired. Pet. at 5, 8. Petitioner explained this claim more fully in his petition for writ of habeas corpus filed in the California Supreme Court: "Does Penal Code section 803(b), which tolls the statute of limitations when prosecution against the same defendant for the 'same conduct' is pending, embrace only crimes committed in the same transaction of events as the charges pending, or does it embrace also the 'same type' of crimes, so that, for example, sexual abuse on a minor may be deemed the 'same conduct' although these acts, clearly and distinctly separated in time, place and occasion, are not part of the same transaction of events as the pending crimes?" Lodg. Doc. 13 at 1-2. Petitioner further explained:

Appellant's arguments [on direct appeal] were predicated on a commencement date for the prosecution with the filing of the information on November 16, 2000. In sum appellant argued [on direct appeal] that, even taking into account a sojourn in Mexico . . . which may (or may not) have tolled the statute of limitations for as much as three years (§803(d)) (footnote omitted), some of the counts (1, 5-11) were still barred as a matter of law, while some may have been barred. In the case of these latter, the jury could not determine the factual matter correctly because the trial court instructed them erroneously that the prosecution, as a matter of law, commenced, not with the filing of the information but with the issuance of an arrest warrant on December 19, 1997. (citation omitted.)

The court of appeal agreed with the trial court. The warrant, although not issued for the exact same crimes charged, was issued for the "same conduct." Therefore, prosecution was "pending," within the meaning of Section 803(b), which tolled the statute of limitations. (citation omitted.) As will be seen, however, the court of appeal's interpretation of "same conduct" is problematical because the crimes eventually charged consisted in conduct that was completely separate in time, place, and occasion from the conduct described in the warrant, and such an expansive interpretation of the meaning of "same conduct" is not well supported by the statute or the rules of statutory interpretation.

Id. at 3-4.*fn4

Citing only state law, the California Court of Appeal rejected these challenges to petitioner's conviction on statute of limitations grounds, reasoning as follows:

B. Statute of Limitations

"Because the statute of limitations is jurisdictional and need not be specially pleaded as a defense, the defendant's plea of not guilty raises the issue. The burden is then on the prosecution to prove, by a preponderance of the evidence, that the ... information or complaint [was] filed within the prescribed period after commission of the offense." (1 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Defenses, § 218, p. 581.)

The statute of limitations for violations of section 288.5 is six years from the date the crime was committed. (§§ 288.5, 800.) For a continuous course-of-conduct crime such as section 288.5 (Vasquez, supra, 51 Cal.App.4th at p. 1285, 59 Cal.Rptr.2d 389), the crime is complete when the course of conduct ends. (Wright v. Superior Court (1997) 15 Cal.4th 521, 525, 63 Cal.Rptr.2d 322, 936 P.2d 101; see also People v. Zamora (1976) 18 Cal.3d 538, 548, 134 Cal.Rptr. 784, 557 P.2d 75 (Zamora).) The limitations period ceases to run when prosecution begins, that is, "when any of the following occurs: [¶] (a) An indictment or information is filed. [¶] ... [¶] (d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint."*fn5 (§ 804.)

The limitations period is tolled for up to three years if the defendant is out of the state. (§ 803, subd. (d).) Moreover, "[n]o time during which prosecution of the same person for the same conduct is pending in a court of this state is a part of a limitation of time prescribed in this chapter." (§ 803, subd. (b).) Under some circumstances, the prosecution may revive allegations of child sexual abuse after expiration of the limitations period. (§ 803, subd. (g)(2)(A).) We construe statutes of limitation strictly in favor of the accused. (Zamora, supra, 18 Cal.3d at p. 574, 134 Cal.Rptr. 784, 557 P.2d 75; People v. Le (2000) 82 Cal.App.4th 1352, 1357-1358, 98 Cal.Rptr.2d 874.)

Defendant contends the trial court erred in ruling as a matter of law, and instructing the jury, that case No. 97-9186 commenced upon issuance of the arrest warrant on December 19, 1997. He argues the December 1997 arrest warrant failed to cite any violation of section 288.5, and therefore did not commence prosecution of count 1. Defendant also notes the accompanying police report showed only that defendant molested S.W. on two consecutive nights, and cannot support a charge of continuing sexual abuse for that reason. He stated that "[a] directed finding would have been appropriate, but it should have fixed the commencement of the prosecution at November 16, 2000, when the information was filed."

There is no merit in these contentions. We conclude that the violations of sections 288, subdivision (a), and 288a, subdivision (b)(2) set forth in the December 1997 complaint and arrest warrant involved the "same conduct" later alleged in count one of the information. Under section 803, subdivision (b), the limitations period on continuing sexual abuse did not continue to run between December 19, 1997, and November 16, 2000, while "prosecution of the same person for the same conduct" was pending. Accordingly, the trial court was correct in ruling prosecution of count 1 commenced in December 1997.

Although we find no cases directly on point, this court considered a similar statute of limitations issue in the context of a trial court's refusal to instruct on a lesser related offense it found to be time-barred. In People v. Whitfield (1993) 19 Cal.App.4th 1652, 24 Cal.Rptr.2d 210 (Whitfield), the jury convicted defendant of a variety of sexual offenses, including forcible rape. (Id. at pp. 1654-1655, 24 Cal.Rptr.2d 210.) On appeal, defendant argued the court erred in refusing to give requested instructions on section 647, subdivision (b), engaging in prostitution. (Whitfield, supra, at p. 1656, 24 Cal.Rptr.2d 210.) Citing sections 803, subdivision (b), and 804, subdivision (a), we narrowed the issue to "whether the related offense of prostitution [was] based on the 'same conduct'" as the rapes charged in the information. (Whitfield, supra, at p. 1659, 24 Cal.Rptr.2d 210.)

We continued: "The Law Revision Commission comment to section 803 states that '[t]he test of the "same conduct," involving as it does some flexibility of definition, states a principle that should meet the reasonable needs of prosecution, while affording the defendant fair protection against an enlargement of the charges after running of the statute....' [¶] Thus, where an action is dismissed and refiled after the period of limitations, the prosecutor may charge offenses based on the 'same conduct' as the dismissed action because the filing of the original action tolls the statute of limitations not only as to those offenses charged in the original action, but also as to offenses based on the 'same conduct.'" (Whitfield, supra, 19 Cal.App.4th at p. 1659, 24 Cal.Rptr.2d 210.) We also explained that "[f]ormer section 802.5 (repealed Stats.1984, ch. 1270, § 1, p. 4335), the antecedent to section 803, subdivision (b), provided in part: '... no time during which a criminal action is pending is a part of any limitation of the time for recommencing that criminal action in the event of a prior dismissal of that action, subject to the provisions of Section 1387.' (Stats.1981, ch. 1017, § 3, p. 3927.) In its comment to section 803, subdivision (b), the Law Revision Commission explained: 'Subdivision (b) continues the substance of former Section 802.5. The limitation of former Section 802.5 that permitted recommencing the same "criminal action" is replaced by the broader standard of prosecution of the "same conduct," drawn from Model Penal Code § 1 .06(6)(b). The former law that provided tolling only for a subsequent prosecution for the same offense was too narrow, since the dismissal may have been based upon a substantial variation between the previous allegations and the proof.'" (Whitfield, supra, 19 Cal.App.4th at p. 1659, fn. 8, 24 Cal.Rptr.2d 210.)

The conduct at issue in Whitfield was sexual intercourse between defendant and his two victims, both of whom claimed the conduct was rape. (Whitfield, supra, 19 Cal.App.4th at pp. 1659-1660, 24 Cal.Rptr.2d 210.) We concluded that the filing of the information tolled the one-year statute of limitations on prostitution, because the prostitution offenses were based on the same conduct as the rapes for which defendant was being prosecuted. (Id. at p. 1660, 24 Cal.Rptr.2d 210.) We therefore reversed three of the rape convictions, deciding that the instructions requested by defendant on the lesser related offense of prostitution should have been given. (Id. at pp. 1660-1661, 24 Cal.Rptr.2d 210; accord, People v. Greenberger (1997) 58 Cal.App.4th 298, 368-369, 68 Cal.Rptr.2d 61 [kidnapping was part of the same conduct that resulted in the victim's murder, and prosecution commenced with the issuance of the arrest warrant for murder]; see also People v. Bell (1996) 45 Cal.App.4th 1030, 1064-1065, 53 Cal.Rptr.2d 156 [the forgery and false filing were merely aspects of the rent skimming scheme, and prosecution was deemed by operation of law to have commenced with the issuance of the arrest warrant for the rent skimming offenses].)

Applying the same reasoning to the case before us, we conclude the trial court did not err in ruling and instructing the jury that prosecution of count 1 commenced with the issuance of the arrest warrant on December 19, 1997.

Opinion at 10-15. In sum, the state appellate court rejected petitioner's arguments that the limitations period continued to run between the issuance of the arrest warrant for the crimes involving victim S.W. on December 19, 1997, and the issuance of the amended consolidated complaint on November 16, 2000. The court reasoned that because the crimes involved the "same conduct," the statute of limitations was tolled during that period. Petitioner challenges these conclusions by the California Court of Appeal.

Although petitioner cites several federal constitutional provisions in the caption of this claim, his claim essentially involves the interpretation of state law. A challenge to a state court's interpretation of state law is not cognizable in a federal habeas corpus petition. See Waddington v. Sarausad, ___ U.S. ___, 129 S.Ct. 823, 832 n.5 (2009) ("we have repeatedly held that 'it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions"); Rivera v. Illinois, ___ U.S. ___, 129 S.Ct. 1446, 1454 (2009) ("[A] mere error of state law . . . is not a denial of due process") (quoting Engle v. Isaac, 456 U.S. 107, 121, n. 21 (1982) and Estelle v. McGuire, 502 U.S. 62, 67, 72-73 (1991)); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) "a state court's interpretation of state law . . . binds a federal court sitting in federal habeas"); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (federal habeas corpus relief does not lie for errors of state law). A habeas petitioner may not "transform a state-law issue into a federal one" merely by asserting a violation of the federal constitution. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997). Rather, petitioner must show that the decision of the California Court of Appeals somehow "violated the Constitution, laws, or treaties of the United States." Little v. Crawford, 449 F.3d 1075, 1083 (9th Cir. 2006) (quoting Estelle, 502 U.S. at 68).

Petitioner has cited no federal cases in support of this claim, nor has he explained how the state court decision or the timing of the state charging documents violate the federal constitution or a federal statute. Accordingly, he has failed to establish that the state court's rejection of his statute of limitations claim was contrary to, or an unreasonable application of clearly established federal law. See Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) ("If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law"). For these reasons, petitioner is not entitled to relief on his claim that some of the charges against him were barred by the state statute of limitations.

2. Failure to Submit Alternative Verdicts to the Jury

Petitioner's next claim is that the trial court violated his rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution when it failed to submit alternative verdict forms to the jury pursuant to Cal. Penal Code § 288.5(c) with respect to the charges involving victim S.W. Pet. at 5. In his petition for review filed in the California Supreme Court, petitioner described this claim as follows:

In the instant case, the prosecutor alleged that the violations of Section 288(a) charged in counts 2 through 11 occurred on within [sic] the exact . . . expanse of time as the violation of Section 288.5 charged in count 1. Under the terms of Section 288.5(c), appellant could not be convicted of both: "No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative."

Pursuant to this subdivision, the Court of Appeal accepted appellant's claim of error, but not his claim of remedy. Appellant contended that because the prosecutor did not submit the case in the alternative to the jury, the remedy was either remand for retrial on all these counts, or an order to the Superior Court to vacate the convictions leading to a greater punishment and impose the lesser. This latter would remove any prejudice from the error. Instead, the Court of Ap peal, ex cathedra, vacated the conviction on count 1 and affirmed the greater sentence that remained for count 2 through 11. (citation omitted.)

This issue has not been resolved. In People v. Johnson (2002) 28 Cal.4th 240, this Court affirmed the plain meaning of Section 288.5(c) against a claim that one set of convictions may remain so long as the punishment was stayed. The statute requires an acquittal, and, again, this Court affirmed the plain meaning of the statute. (Id. at p. 243.) The question of remedy, however, was circumvented, because this Court vacated the convictions that would lead to the greater sentence and sanctioned the imposition of the lesser sentence.

The key to appellant's contention is that Section 288.5(c) creates both a statutory and Sixth Amendment right to a trial by jury (see Turner v. Louisiana (1965) 379 U.S. 466, 471-472), i.e., the right to have a jury determine which group of counts should be found for conviction and which for acquittal. A trial court or reviewing court that chooses the counts that render a higher penalty usurp the jury's function, unless it removes any prejudice from the statutory and constitutional error by vacating the convictions for the counts that render the higher penalty.

Pet., Ex. A-A, at 8-9. The California Court of Appeal rejected these claims, reasoning as follows:

C. Charging in the Alternative Under Section 288.5

Section 288.5 "imposes certain limits on the prosecution's power to charge both continuous sexual abuse and specific sexual offenses in the same proceeding. A defendant may be charged with only one count of continuous sexual abuse unless multiple victims are involved, in which case a separate count may be charged for each victim." (People v. Johnson (2002) 28 Cal.4th 240, 243, 121 Cal.Rptr.2d 197, 47 P.3d 1064 (Johnson); § 288.5, subd. (c).) Section 288.5, subdivision (c) contains the additional limitation that "[n]o other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative ...." (§ 288.5, subd. (c).) In Johnson, a case argued and decided while defendant's case was pending in this court, the California Supreme Court held that given the clear language of section 288.5, the prosecution may not obtain multiple conviction for continuous sexual abuse and specific sexual offenses involving the same victim over the same period of time. (Johnson, supra, at p. 248; emphasis added.)

In this case, there is no dispute the district attorney failed to charge the offenses in count 1 and counts 2 through 11 in the alternative. Following defendant's conviction on each of these counts, the court stayed the 16-year sentence in count 1 pursuant to section 288.5, and imposed consecutive, two-year sentences, or one-third the middle term, for the 10 violations of section 288, subdivision (a) in counts 2 through 11.

Emphasizing the plain meaning of the statute, defendant insists he is entitled to reversal of counts 1 through 11 because the court failed to submit them to the jury in the alternative. At oral argument, defendant's counsel argued we should order retrial on all these counts so the jury can decide whether to convict defendant on the single count of continuous sexual abuse under section 288.5, or on the 10 individual counts. Alternatively, he noted there would be no prejudice if we reversed defendant's conviction on specific counts 2 through 11 and the 20-year sentence, and affirmed his conviction in count 1 with the lower sentence of 16 years. The law does not compel either remedy.

The harm caused by the pleading error can be cured by invalidation of either the continuous sexual abuse conviction or the convictions on the specific counts of sexual abuse. (Johnson, supra, 28 Cal.4th at pp. 245-248, 121 Cal.Rptr.2d 197, 47 P.3d 1064 [affirming Court of Appeal's reversal of specific sexual abuse counts]; see People v. Alvarez (2002) 100 Cal.App.4th 1170, 1177, 122 Cal.Rptr.2d 859, review den. Oct. 23, 2002 [affirming the trial court's dismissal of the section 288.5 count].) The Alvarez court considered the legislative purpose of section 288.5, and observed that "[i]t would be anomalous if section 288.5, adopted to prevent child molesters from evading conviction, could be used by those molesters to circumvent multiple convictions with more severe penalties and prior strike consequences than available for a conviction under section 288.5." (Alvarez, supra, at pp. 1177-1178, 122 Cal.Rptr.2d 859.) Based on the foregoing, we reverse defendant's conviction of continuous sexual abuse in count 1. In so doing, we affirm the trial court's election to sentence defendant to the higher aggregate term for the specific sexual offenses.

Defense counsel also suggested at oral argument that defendant was entitled to the lower, 16-year sentence as a result of the district attorney's pleading error. According to counsel, "[t]he defendant did not come out the best he could have done." We begin by noting defendant did not demur and therefore waived any defect in the pleading. (Alvarez, supra, 100 Cal.App.4th at p. 1176, 122 Cal.Rptr.2d 859.) Moreover, the jury found defendant guilty on each count the prosecution should have pleaded in the alternative. In these circumstances, we perceive no miscarriage of justice in affirming the trial court's determination defendant should serve the most severe sentence prescribed by law. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836-838, 299 P.2d 243.)

Opinion at 15-17.*fn6

As in the claim above, this claim challenges the state court's interpretation of state law. As such, it is not cognizable in this federal habeas proceeding. Waddington, 129 S.Ct. at 832 n.5; Rivera, 129 S.Ct. at 1454; Bradshaw, 546 U.S. at 76; Lewis, 497 U.S. at 780.*fn7

To the extent petitioner is arguing that the state court's remedy for a violation of Cal. Penal Code § 288.5 constituted a violation of Turner v. Louisiana (1965) 379 U.S. 466, 471-472), his claim must fail. Turner held that a state criminal defendant had been denied the right to a fair trial by an impartial jury when the two deputy sheriffs who gave key testimony leading to defendant's conviction had fraternized with the jurors outside of the courtroom during the performance of their duties. The court reasoned that jurors have a duty to consider only the evidence which is presented to them in open court. Id. at 472-73. The court explained that "[i]n the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." Id. Turner does not address the issue presented here, which is whether a state appellate court can remedy a violation of Cal. Penal Code § 288.5 by striking counts that carry lesser penalties than the counts that are allowed to stand, as opposed to remanding the matter for a jury trial. Because petitioner has not cited a United States Supreme Court decision on this point, he has failed to establish that the state court's rejection of his statute of limitations claim was contrary to, or an unreasonable application of clearly established federal law. See Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (when a Supreme Court decision does not "squarely address[ ] the issue in th[e] case" or establish a legal principle that "clearly extend[s]" to a new context, "it cannot be said, under AEDPA, there is 'clearly established' Supreme Court precedent addressing the issue before us, and so we must defer to the state court's decision"); Brewer, 378 F.3d at 955 ("If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law"). The court also notes that the jury convicted petitioner of both the individual counts and the count of continuous assault on a minor. Accordingly, petitioner was not deprived of a jury trial on any of these counts.

For all of these reasons, petitioner is not entitled to relief on this claim.*fn8

3. Admission of Evidence of Prior Uncharged Offenses

Petitioner claims that the trial court violated his right to due process and the Ex Post Facto clause when it admitted evidence of prior uncharged sexual offenses pursuant to Cal. Evidence Code § 1108 to show petitioner's propensity to commit sex offenses. Pet. at 6; Traverse at 13-22. Citing Stogner v. California, 539 U.S. 607 (2003), petitioner argues that the evidence was unduly prejudicial and too stale to be relevant and that it relieved the prosecution of its burden to prove the charges beyond a reasonable doubt. Pet. at 11. Petitioner also contends that if the trial court had not admitted this evidence, he would have received a lesser sentence. Id.

a. State Court Decision

The California Court of Appeal rejected these arguments, reasoning as follows:

D. Evidence Code Section 1108

In pretrial motions, the prosecution sought admission of evidence of uncharged acts of child sexual abuse under Evidence Code section 1101, subdivision (b) to show intent and common plan or scheme, and under Evidence Code section 1108 to show defendant's propensity to sexually molest children.*fn9 Defense counsel objected on various grounds, but did not assert Evidence Code section 1108 was inapplicable on constitutional grounds. A lengthy discussion ensued, during which the court engaged in a detailed analysis of the proffered evidence under Evidence Code section 352. The court overruled defense counsel's objections, and admitted evidence in the form of testimony by two additional victims. It instructed the jury that the evidence was admitted for the limited purpose of showing defendant "had a disposition to commit the same or similar-type sexual offenses," a "characteristic method, plan or scheme in the commission of criminal acts," and "the existence of the intent which is a necessary element of the crime charged, ..." Thereafter, R.R. and L.B. testified about acts of child sexual abuse defendant committed on them in the late 1960's and early 1970's.

Evidence Code section 1108 became effective on January 1, 1996 (People v. Fitch (1997) 55 Cal.App.4th 172, 185, 63 Cal.Rptr.2d 753 (Fitch)), before trial, but after defendant was alleged to have committed the acts charged in the information. Defendant argues we must reverse his convictions on all but four of the 32 counts, including count 1, because introduction of the evidence of uncharged acts under Evidence Code section 1108 constituted a violation of the prohibition against ex post facto laws. He urges us to re-examine our holding to the contrary in Fitch, supra, at pages 185-186, 63 Cal.Rptr.2d 753, based on the United States Supreme Court's clarification of ex post facto jurisprudence in Carmell v. Texas (2000) 529 U.S. 513, 538-539 [146 L.Ed.2d 577, 597-598] (Carmell ).

Defense counsel failed to object at trial to the admission of the uncharged acts on the ground asserted here. Accordingly, we conclude he waived the issue for purposes of appeal. (Evid.Code, ยง 353; see People v. Pinholster (1992) 1 Cal.4th 865, 934-935, 4 Cal.Rptr.2d 765, 824 P.2d 571 [defense waived any challenge to admission of taped witness interview by ...


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