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Hertzig v. Yates

October 12, 2010


The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge



Petitioner is a state prisoner proceeding pro se with a Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a 2006 jury trial, Petitioner was convicted of five counts of lewd and lascivious acts with a child under the age of 14, one count of unlawful sexual intercourse and ten misdemeanor counts of possession of child pornography. Petitioner received a sentence of forty years and eight months to life imprisonment.

Petitioner raises several claims in this federal habeas petition; specifically: (1) the trial court abused its discretion in denying Petitioner's request to withdraw his pro perstatus which violated his right to counsel ("Claim I"); (2) the trial court violated Petitioner's right to due process, self-representation, meaningful access to the courts and the opportunity to prepare a defense when it failed to provide him with access to CALCRIM jury instructions ("Claim II"); (3) the trial court violated Petitioner's due process and fair trial rights when it denied his motion to sever the child molestation and unlawful intercourse charges from the possession of child pornography charges ("Claim III"); and (4) the admission of propensity evidence violated Petitioner's right to due process and equal protection ("Claim IV"). Petitioner requests an order to show cause, the appointment of counsel as well as an evidentiary hearing on his Claims. For the following reasons, these requests are denied and it is recommended that the habeas petition be denied.


The prosecution presented a chronology portraying a disturbing pattern of defendant's sexual exploitation of young girls. It began in 1996 when defendant, then 18, put his hand in the shirt of his friend's 14-year-old sister and then down her pants. She reported the incident to police.

In 1998 defendant's sister, Kelly, [FN1] told his then girlfriend, Debbie, that defendant had touched her breasts and genitals. Debbie also reported the incident. When interviewed, 10-year-old Kelly told the detective that defendant had licked her private area, placed his finger in her rectum, and "[got] her wet." She told a nurse practitioner that defendant had ejaculated on her stomach. A physical examination revealed a healed injury to Kelly's hymen. Not long thereafter Kelly told an interviewer at the Multi-Disciplinary Interview Center that defendant had undressed her, "kissed me down there," touched her "private" with "his hand and his thing," and "made himself pee," and that "white" pee got on her body. She also reported that on other occasions he used his tongue on her private and put his finger in her bottom. [FN1] The names of the victims have been changed to protect their privacy.

Defendant denied Kelly's accusations. Two days after Kelly disclosed the molestations to Debbie, defendant married Debbie in an impromptu exchange of vows in Lake Tahoe. Defendant and Debbie's first-born daughter, Laura, was born late that year.

The marriage was tumultuous. By 2002 Debbie suspected defendant was having a sexual relationship with Kelly. When confronted, defendant told Debbie she was crazy and that he would never do anything like that.

In July 2005 Laura told her mother's friend that her father had touched her vagina and rectum. Later the same day, she told a police officer that defendant had touched her "pee-pee" and bottom; she described three separate attacks involving the touching of her rectum and vagina, and vaginal intercourse in the bedroom, shower, and on the couch. An examination revealed a healed hymenal cleft and granulation tissue consistent with a penetrating injury.

In early August 2005, police seized a computer from defendant's residence. Videos containing images of children engaged in sexual acts were found on the computer.

Kelly gave birth to premature twins in January 2006. Through DNA testing, the prosecution ascertained that defendant was the father of the twins, one of whom died during defendant's trial.

(Slip Op. at p. 2-4 (footnote omitted).)


Petitioner was charged with: five counts of committing a lewd and lascivious act with a child under the age of 14... and alleging that the offenses involved two or more victims; unlawful sexual intercourse; and 10 counts of possession of child pornography.

Defendant represented himself at trial but did not testify. After vigorous cross-examination of the prosecution's witnesses, including Debbie and Laura, defendant argued to the jury that Debbie, with the wrath of a "woman scorned," coached their six-year-old daughter to fabricate the allegations of molestation and loaded pornographic videos onto her laptop computer to deprive him of custody of their four children. He attacked her credibility, veracity, motives, capacity, and intentions. Faced with DNA evidence of paternity, he admitted having a sexual relationship with Kelly but denied molesting her when she was nine or his daughter when she was six.

(Slip Op. at p. 4 (internal citations omitted).) Petitioner was convicted on all counts. After sentencing, he appealed to the California Court of Appeal, Third Appellate District. In his appeal, Petitioner raised the same claims that he raises in this federal habeas petition amongst others. On October 24, 2007, the California Court of Appeal denied Petitioner's claims that he raises in this federal habeas petition in a written opinion.*fn2 The California Supreme Court denied the petition for review without discussion on January 30, 2008. Petitioner filed his federal habeas petition with this Court on January 5, 2009.


An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d).

If a state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a petitioner's habeas claims. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where a state court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court's decision was objectively unreasonable in its application of controlling federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009); see also Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000), overruled on other grounds, Lockyer v. Andrande, 538 U.S. 63 (2003).

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the 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 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding... and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").

The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The last reasoned decision in this case came from the California Court of Appeal.


A. Claim I

In Claim I, Petitioner asserts that the trial court abused its discretion when it refused his request to withdraw his pro per status after the jury had been impaneled. The California Court of Appeal analyzed this Claim in its opinion and stated the following:

It is established that the Sixth Amendment to the United States Constitution gives a criminal defendant the right to counsel as well as the right to represent himself if he knowingly and voluntarily waives his right to counsel. (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562.].) It does not, however, provide a constitutional right to change his mind and switch back and forth during trial. (People v. Boulware (1993) 20 Cal.App.4th 1753, 1756.) "[O]nce defendant ha[s] proceeded to trial on a basis of his constitutional right of self-representation, it is thereafter within the sound discretion of the trial court to determine whether such defendant may give up his right of self-representation and have counsel appointed for him." (People v. Elliott (1977) 70 Cal.App.3d 984, 993 (Elliott).)

Until a week before trial, defendant was represented by the public defender. He then invoked his right to represent himself. The trial court warned him of the pitfalls and dangers of self-representation, counseled him against forsaking his lawyer, and instructed him he would be held to the same standard as any attorney, would not be given special treatment, and would be presumed to know the law necessary to defend himself. Well admonished, defendant knowingly waived his right to counsel and the court had no choice but to grant his request to represent himself. (People v. Smith (1980) 112 Cal.App.3d 37, 48 (Smith).)

The trial court then heard pretrial motions and conducted three days of voir dire. A jury was impaneled. Before opening statements, defendant asked to have counsel appointed, but he was unwilling to waive his right to a speedy trial and would not accept reappointment of the same public defender. Perplexed, the court remarked that defendant had put both himself and the court "between a hard place and a rock. [¶] On the one hand, you're saying you want your trial within the statutory time period. That means no time waivers. No continuances in this matter. [¶] And on the other hand, you're saying well, I need these things to adequately prepare so I want another attorney."

Defendant explained that he had not been provided access to the law library or to the telephone to contact an investigator. The court expressed considerable concern that he had not been accorded his pro. per. privileges, even following a call from the court. The court ordered that defendant be allowed to telephone the investigator and assured him the court would follow up and see if the "investigator can come over and see you." Defendant does not assert that he had any further difficulty in securing his pro. per. privileges throughout the trial. He contends, nonetheless, that the court abused its discretion by denying his request to allow him to withdraw his wavier of counsel and to appoint him another lawyer.

In evaluating whether the trial court abused its discretion by denying a defendant's request for a lawyer after he invoked his right of self-representation, California courts consider the following relevant factors: "(1) defendant's prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney." (Elliott, supra 70 Cal.App.3d at pp. 993-994.) Yet these factors must yield to a more holistic review of the totality of the facts and circumstances as the Supreme Court instructs in People v. Gallego (1990) 52 Ca.3d 115: "'While the consideration of these criteria is obviously relevant and helpful to a trial court in resolving, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial.'" (Id. at p. 164, quoting People v. Smith (1980) 109 Cal.App.3d 476, 484.) We agree with the trial court that defendant put it between a rock and a hard place. As the court well understood, several factors favored granting defendant's request. There is no indication in this record that defendant had abused his privilege during the course of the proceedings or, as in other cases, changed his mind on multiple occasions. Rather, he asked for counsel when he had difficulty accessing legal materials and the investigator. While the pretrial motions had been litigated and the jury impaneled, the trial itself had not yet begun.

Defendant, however, would not waive time and did not want the same public defender reappointed even if she were available. Thus defendant had an irreconcilable dilemma of his own making. No competent lawyer, as the trial court emphasized, would be willing or able to try such a serious and complex case without adequate time for preparation. Yet because defendant remained unwilling to request or accept a continuance, he deprived himself of a competent replacement.

It was indeed very likely that he could effectively defend against the charges by continuing to act as his own attorney, and the record of the ensuing proceedings attests to his effectiveness. His cross-examination of witnesses was appropriately gentle when confronting his young daughter and appropriately searing when confronting his ex-wife, who he asserted was the mastermind behind the false charges. His argument was cogent. He highlighted the weaknesses in the prosecution's case, challenged the veracity of the prosecution's witnesses, and offered a viable alternative to the prosecution's theory. Even before trial began and he had the opportunity to demonstrate his legal prowess, the court had absolutely no reason to doubt his ability to defend himself.

In sum, the court was presented with a bright, articulate, and competent defendant insisting on his right to a speedy trial and unwilling to either waive time or consider reappointment of the same public defender and yet also insisting on the appointment of another lawyer. The court took reasonable measures to assure that defendant was provided his pro. per. privileges, and as we pointed out above, defendant does not assert there were any continuing obstacles to his self-representation. We conclude, therefore, that under "'the totality of the facts and circumstances'" the court did not abuse its discretion by denying defendant's request to withdraw his waiver of ...

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