The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner Manuel D. Lopes is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that the habeas petition be denied.
On August 2, 2005, a Sacramento County jury convicted Petitioner of "six counts of lewd and lascivious conduct with a child under fourteen years of age (Pen. Code, § 288, subd. (a)); two counts of assault with intent to commit rape by force or fear (§§ 220/261, subd. (a)(2)); and one count each of rape (§ 261, subd. (a)(2)); unlawful oral copulation (§§ 289, subd. (a)(1))." Lodged Doc. 4, at 1 (footnote omitted); see Lodged Doc. 22, Clerk's Tr. vol. 1, 154-56.
Petitioner was sentenced "to a state prison term of 36 years [and] 8 months." Lodged Doc. 4, at 1.
Petitioner directly appealed to the California Court of Appeal, Third Appellate District. See Lodged Doc. 1. On October 10, 2007, California Court of Appeal issued a reasoned decision affirming the conviction and sentence. See Lodged Doc. 4.
Petitioner filed a petition for a rehearing in the California Court of Appeal. See Lodged Doc. 5. On November 9, 2007, the California Court of Appeal denied Petitioner's petition for a rehearing. See Lodged Doc. 7.
Petitioner filed a petition for review in the California Supreme Court. See Lodged Doc. 8. On January 23, 2008, the California Supreme Court denied the petition without comment or citation. See Lodged Doc. 9.
In February 2008, Petitioner filed a petition for writ of habeas corpus with the Sacramento County Superior Court. See Lodged Doc. 10. On April 7, 2008, the Superior Court denied the petition. See Lodged Doc. 11.
On August 19, 2008, Petitioner filed a petition for writ of habeas corpus with the California Court of Appeal, Third Appellate District. See Lodged Doc. 12. On August 21, 2008, the California Court of Appeal denied the habeas petition without comment or citation. See Lodged Doc. 13.
On September 11, 2008, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court. See Lodged Doc. 14. On March 11, 2009, the California Supreme Court denied the habeas petition without comment or citation. See Lodged Doc. 15.
On May 8, 2009, Petitioner filed a federal habeas petition. See Pet'r's Pet., ECF No. 1.*fn1
On September 9, 2009, Respondent filed an answer, see Resp't's Answer, ECF No. 17, to which Petitioner filed a traverse on December 15, 2009. See Pet'r's Traverse, ECF No. 24.
III. FACTUAL BACKGROUND*fn2
Counts one through six -- lewd and lascivious conduct with a child [Petitioner] sexually assaulted his daughter, V., from the time she was eight years old until she was 14 years old. The first assault occurred in 1998 when V. was in the third grade. At that time, the family lived in an apartment in Sacramento. The family consisted of [Petitioner], his wife Patricia, son Manny, daughter V., and [Petitioner's] brother Paul.
During the first assault, [Petitioner] entered the bedroom where V. was sleeping, put his hand underneath V.'s clothes, and rubbed her vagina. V. told [Petitioner] to stop and leave her alone, but he did not. V. next remembered being in her parents' bedroom. She could not recall how she got there. [Petitioner] sat down on the bed and V. stood in front of him. [Petitioner] pulled down V.'s shorts and underwear and again rubbed her vagina. V. could not recall how this incident ended.
V. testified that over the next four years, similar incidents of [Petitioner] rubbing her vagina occurred five or six times. Three of the assaults happened while the family lived in the Sacramento apartment, while the remaining assaults occurred in [Petitioner's] parents' house in West Sacramento where the family had eventually moved. The assaults occurred early in the morning. [Petitioner] would take the day off work, take his wife to work early in the morning, then come home and molest V.
V. never told anyone about these assaults because she did not want to break up the family. While molesting V., [Petitioner] told her not to tell anyone because he would go to jail.
One evening while V. was attending the seventh grade, her brother had gone to a dance and her mother was attending a concert. [Petitioner] drove V. along the river and parked the car. [Petitioner] put window shades over the front and rear windshields.
V. became scared and began crying because she was afraid something was going to happen.
A police car pulled up behind [Petitioner's] car. The officer asked [Petitioner] why he had the shades up. [Petitioner] said he and V. were just having a conversation and the lights from the other cars were hurting V.'s eyes. The officer asked V. if she was okay. V. said everything was fine. The officer told [Petitioner] to keep driving. While driving home, [Petitioner] quickly touched V.'s vagina over her clothing.
Counts seven and eight -- assault with the intent to commit rape In January 2004, V. was in her ninth grade year. One morning, [Petitioner] took the day off work and took his wife to her work. He returned home about 5:00 a.m., came into V.'s bedroom, and took off her shorts and underwear. V. cried and asked him not to do it. [Petitioner] told her to be quiet. [Petitioner] attempted to insert his finger inside V.'s vagina. His finger was lubricated with a gel, and he succeeded in getting the tip of his finger inside her.
V. moved away because it hurt her. He continued trying, but eventually gave up.
Then [Petitioner] climbed on top of V. His boxer shorts were off.
V. felt his erection against her stomach. She cried louder. [Petitioner] put his hand over her mouth and told her to "shut up."
V. could not recall if [Petitioner's] penis went near her vagina or how the attack ultimately ended. After [Petitioner] left the room,
V. locked her door and cried herself back to sleep clutching one of her teddy bears.
On a windy March 2004 day, [Petitioner] told V. and her brother, Manny, that they could stay home from school due to the weather. Manny went to school, but V. stayed home. [Petitioner] took the day off work. He molested V. by touching her vagina and attempting to insert his finger into it. V[.] could not recall if he penetrated. At trial in 2005, V. also could not recall if [Petitioner] crawled up on top of her.
During a videotaped forensic interview of V. conducted by staff at the Multi Disciplinary Interview Center (MDIC) in May 2004, V. stated that after [Petitioner] touched her vagina on this occasion, he got on top of her and attempted to put his penis inside of her. His attempt was unsuccessful. At trial, V. stated she could not remember making this statement to the interviewer.
Counts nine through eleven -- rape, unlawful oral copulation, forcible sexual penetration By April 2004, the family had moved to a new condominium in Sacramento. Once again, [Petitioner] took a day off work, drove his wife to work, then came home and molested V. He woke her up, picked her up out of bed, and carried her into his bedroom. V. cried and asked him not to do this to her. He laid her down on top of a white towel placed on his bed. He took V.'s pants and underwear off and began rubbing her vagina. His fingertip penetrated her vagina. V. squirmed and tried to move away from [Petitioner], hitting her head on the wall. [Petitioner] licked V.'s vagina. He got on top of her and tried to insert his penis into her vagina, but he could not get it in completely. V. tried to move away, but [Petitioner] grabbed her by the shoulders and pulled her back down. V. cried during the attack, and [Petitioner] told her to shut up and be quiet. He told her not to tell anyone what he had done because he would go to jail if she did.
V. did not report these assaults to her mother for fear it would break up the family. She did not disclose the molestations until sometime in 2004, when she wrote a letter to a friend stating she had been molested. That same year, she also told her brother of the assaults.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).
The petition for writ of habeas corpus sets forth five grounds for relief:
1. There was insufficient evidence for counts two to six for lewd and lascivious conduct under Section 288(a) of the California Penal Code. See Pet'r's Pet. 7.
2. "Conviction of counts 2 to 6 [for lewd and lascivious conduct] were unlawful under article I, section 14, of the California Constitution and under [S]section 1009 [of the California Penal Code]; alternatively, trial counsel provided ineffective assistance by failing to protect Petitioner's rights not to be convicted of uncharged offenses." Pet'r's Pet. 19.
3. The trial court had a sua sponte duty to instruct the jury using CALJIC No. 10.64, limiting the use of expert testimony concerning Child Sexual Abuse Accommodation Syndrome (CSAAS). Pet'r's Pet. 30.
4. "Petitioner's right to be present at all stages of this trial was violated by the taking of the verdict, polling of jurors, and discharge of jurors in his absence." Id. at 39.
5. The prosecutor committed prejudicial misconduct. Id. at 46.
Ground two is referenced more than once as it refers to separate issues. The remaining grounds are reviewed in seriatim. Petitioner's grounds are addressed as follows:
1. Ground One: Insufficient Evidence
2. Ground Two: Unlawful Conviction under the California Constitution and Section 1009 of the California Penal Code
3. Grounds Two: Ineffective Assistance of Counsel
4. Ground Three: Failure to Give CALJIC No. 10.64
5. Ground Four: Right To Be Present
6. Ground Five: Prosecutorial Misconduct
For the following reasons, Petitioner's grounds do not entitle him to habeas relief.
A. Ground One: Insufficient Evidence
In ground one, Petitioner argues his conviction for counts two to six must be "reversed because the evidence was insufficient to show that the offenses occurred at or near the time alleged in the information." Pet'r's Pet. 7. Petitioner asserts that in the prosecutor's opening statement, the prosecutor stated "the evidence would show that [P]petitioner started molesting V. . . . 'when she was eight,' that it happened 'about once or twice a month for the better part of a year,' and the assaults then subsided until the incident in the car when V. . . . was in 7th grade."
Id. at 8 (citation omitted). However, according to Petitioner, "[t]he evidence at trial showed 1) only one violation of section 288, subdivision (a) when V. . . . was eight years old; 2) up to three violations at some unspecified period before the family's move to Bryte Avenue, which occurred when V. . . . was 10 to 12 years old; and 3) two or three violations occurring after the families move to Bryte Avenue and before the car incident." Pet'r's Pet. 9. Petitioner complains that "the jury was not required to make any findings . . . as to when ...