The opinion of the court was delivered by: Gregory G. Hollows 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. This case is before the undersigned pursuant to both parties consent. Docs. 7, 8.
Petitioner challenges his 2007 conviction for continuous sexual abuse of a child under 14 and a lewd act upon a 14 year-old child. Petitioner was found to have a prior strike conviction and sentenced to 24 years in prison. This action is proceeding on the original petition filed December 18, 2009, raising the following claims: 1) Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence was improperly admitted; 2) California Evidence Code § 1108 violates due process and is unconstitutional and the trial court abused its discretion in permitting the introduction of prior sexual offenses pursuant to § 1108; 3) improper jury instructions; and 4) the trial courts abused its discretion in denying petitioner's motion to dismiss a prior strike.*fn1 After carefully considering the record, the court orders that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495');">120 S. Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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." Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002).
The undersigned pauses here to especially recognize that the AEDPA standards are purposefully difficult for any petitioner who desires to overturn his/her conviction. The Supreme Court has only recently emphasized in the strongest terms that state court convictions will not be overturned unless there is no reasonable support, either legal or factual, for the determinations of the state courts.
Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.
As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
Harrington v. Richter,U.S., S.Ct, 2011 WL 148587 (2011) The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "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." It makes no sense to interpret "unreasonable" in §2254(d)(2) in a manner different from as that same word appears in § 2254(d)(1) -- i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v.Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 974 (2006).
"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008).
Thus, extrapolations of settled law to unique situations will not qualify as clearly established.
See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S. Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S. Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
The opinion of the California court of appeal contains a factual summary that the court adopts below.
The minor victim, B.G, was born in 1990. During the period in which the offenses were committed, [petitioner] was married to B.G.'s grandmother (Grandmother). While growing, up B.G spent many nights and afternoons after school at Grandmother's house.
In December 2003, when B.G. was 13 years old, [petitioner] fondled B.G.'s breast while she was lying on a couch and Grandmother was not present. B.G. could not remember whether this was the first time [petitioner] touched her inappropriately because it happened so often. He did other things that she was uncomfortable with, such as getting very close and patting her "butt" and commenting on her bra size.
[Petitioner] often gave B.G. back massages, but when he did, if no one else was present, his hands would "find its way to [her] breast or to [her] butt." She estimated that defendant did this more than 10 times but less than 20. She also recalled another specific occasion in 2004 when she complained that her cheerleading activity was making her "butt" hurt. Although she had asked [petitioner] not to rub her butt he did so anyway.
The last time [petitioner] molested B.G. was when she was 14, in November 2004, just before Thanksgiving. [Petitioner] started giving B.G. a back massage in the kitchen. B.G. said she wanted to lie down, so they moved to the living room. When B.G. lay down, [petitioner] massaged her back and then moved to her breasts and buttocks. He put his hands underneath her bra, and made skin to skin contact with her breasts. When Grandmother came into the room and asked, "What are you doing, Bill?" [petitioner] stopped, and B.G. got up.
B.G. did not tell anyone about the molestation because she did not want to break her family apart. She was also afraid of how it would affect her grandmother. On different occasions, Grandmother and B.G.'s mother had asked her if anyone had touched her inappropriately. B.G. lied when she told them no one had. After the November 2004 incident she did tell a friend, and the friend's mother told B.G.'s mother. B.G.'s mother and father then told Grandmother that [petitioner] had been molesting B.G., and had B.G. report the problem to a school resource officer. Although Grandmother initially was not cooperative, she explained that she was "confused and shocked." Grandmother later gave the police a statement, and separated from [petitioner] after 27 years of marriage.
Grandmother testified that she was aware of the [petitioner's] prior child molestation conviction. After that conviction, [petitioner] was placed on probation, and they both went to counseling, where she learned about signs of child abuse. B.G.'s mother was also aware of the prior conviction, and Grandmother promised that she would not leave B.G. alone with [petitioner]. Grandmother also told B.G. not to let anyone touch her inappropriately, and not to "sit on her grandpa's lap." When B.G. was at Grandmother's house, Grandmother was with B.G. 95 to 99 percent of the time.
L.A., who was 38 at the time of trial, testified that as a child she spent a lot of time with Grandmother, who is her cousin, and [petitioner]. In 1982 or 1983, when L.A. was 11 years old, she spent the night sleeping on a couch at their house. [Petitioner] came in and started kissing her and touching her breast. She was "paralyzed with fear." [Petitioner] put his tongue all over L.A.'s face, ears and chest, licking her down to her waist. He did this for about 15 minutes, and then suddenly stopped.
L.A. did not tell anyone because she had heard her mother say that Grandmother was finally happy and had married a good man, and L.A. did not want to be responsible for taking that away from Grandmother. Four years later L.A. came forward when her mother came home, very upset, saying that another cousin, J.P., had accused [petitioner] of touching her inappropriately. Until L.A. came forward, everyone believed that J.P. was lying. After L.A. told her family about what [petitioner] had done, her family stopped associating with these relatives, and L.P. never met B.G.
J.P. was 29 at the time of trial. Grandmother was her aunt. When J.P. was approximately nine years old, she was staying with Grandmother and [petitioner]. When Grandmother was in the bathtub, [petitioner] touched J.P.'s vagina with his fingers. This happened more than once. J.P. reported this conduct to her third grade teacher. J.P. did have contact with her cousin B.G., but did not tell B.G. that [petitioner] had molested her until she learned, in November 2004, that defendant had molested B.G.
Dr. Urquiza, an expert on CSAAS, explained that CSAAS was originally described in an article for therapists of sexually abused children, to dispel misconceptions about child abuse and describe and explain common paradoxical behavior. He testified that CSAAS is an "educational tool to assist treatment," and that it is improper to use it to determine whether a child has been abused, or to determine whether a person is the perpetrator. He testified that the five components of CSAAS are: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed and unconvincing disclosure; and (5) retraction.
Secrecy involves some type of direct or indirect coercion or intimidation that keeps a child from reporting abuse. He explained that the source of coercion or intimidation often arises out of the type of relationship the child has with the abuser, who, contrary to popular belief, is not typically a stranger, but rather is "somebody with whom they have an ongoing relationship." The coercion may take the form of a direct threat, but can also be indirect. The perpetrator may be "bigger or stronger and more in a position of authority," or the child may have witnessed the perpetrator exert power or use force over someone else close to them, and be afraid to make the perpetrator angry. The child may also love the perpetrator and believe the perpetrator or the child will get in trouble if the child reports the abuse.
The helplessness component dispels the misconception that a child will run from, or avoid, a perpetrator. The perpetrator often occupies a position of trust and has control over the child's life and may be responsible for the child's welfare. The child is usually smaller, younger and weaker. Entrapment describes how the child is "stuck" because the child believes he or she cannot tell anyone and cannot do anything to stop it. Accommodation describes the ways a child will cope with the experience of being sexually abused. One way is for the child to disassociate from the unpleasant feeling arising from the abuse so the child can "continue in this experience that they have no control over." If a child learns to cope with the experience they may sustain the relationship with the abuser even though the relationship exposes the child to further the abuse. The child believes he has no choice, and to do otherwise risks that others will discover the abuse.
The delayed and unconvincing disclosure component dispels the misconception that an abused child will promptly report the abuse. Delayed reporting is common, and the unconvincing disclosure element describes the common pattern of "vague and undescriptive" statements or inconsistent or differing statements. The retraction component describes recanting of allegations because of fear, threats, or for other reasons.
Dr. Urquiza also testified that he knew nothing about the particular facts of this case, and had no opinion on the issue of guilt, which he emphasized was a question only for the jury to decide.
For the defense, [petitioner's] daughter-in-law testified that, until November 2004, B.G. was at Grandmother's and [petitioner's] house more often than she was at home. From the age of 10 until Thanksgiving 2004, B.G. constantly badgered [petitioner] for backrubs.
People v. Coates, 2008 WL 4788291 at *1-3.
Claim 1 - Child Sexual Abuse Accommodation Syndrome Petitioner argues that his constitutional rights were violated by the introduction of evidence regarding Child Sexual Abuse Accommodation Syndrome (CSAAS).*fn2 Legal Standard "Habeas relief is available for wrongly admitted evidence only when the questioned evidence renders the trial so fundamentally unfair as to violate federal due process."
Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993). See also Larson v. Palmateer, 515 F.3d 1057, 1065 (9th Cir. 2008) (because federal habeas relief is limited to such instances, "[t]he correctness of the trial court's evidentiary ruling as a matter of state law is irrelevant to our review[.]"); Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998). While adherence to state evidentiary rules suggests that the trial was conducted in a procedurally fair manner, it is certainly possible to have a fair trial even when state standards are violated; conversely, state procedural and evidentiary rules may countenance processes that do not comport with fundamental fairness. Jammal v. Van de Kamp, 926 F.2d 918, 919 (citing Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983)).
The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). The Supreme Court has admonished that the category of infractions that violate "fundamental fairness" has been defined very narrowly. Estelle, 502 U.S. at 72. In Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009), the Ninth Circuit noted the "Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process. Although the Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, see Williams[v. Taylor], 529 U.S. at 375, 120 S.Ct. 1495, it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant ...