The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his March 22, 2005 conviction of three counts of forcible lewd and lascivious acts on a minor under age 14, and five counts of lewd and lascivious acts on two separate minors under the age of 14. Petitioner was sentenced to a determinate term of twelve years in state prison, plus an indeterminate term of forty-five years to life. Petitioner raises two claims*fn1 in the instant petition: (1) the trial court abused its discretion by allowing petitioner to be impeached with stale, prior misdemeanor conduct, in violation of petitioner's due process rights; and (2) trial counsel was ineffective at sentencing for not successfully arguing that petitioner's sentence violated the Constitution pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). After carefully reviewing the record, this court finds that the petition for writ of habeas corpus should be denied.
1. A jury convicted petitioner of three counts of forcible lewd and lascivious acts upon his 11-year-old daughter Hi.L. (counts I, II and III); three counts of lewd and lascivious acts upon Hi.L. (counts IV, V and VI), and two counts of lewd and lascivious acts upon his five-year-old daughter, Ha.L. (counts VII and VIII). The jury found that two acts involving Hi.L. had occurred on different occasions than the remaining acts involving Hi.L., and that one count involving Ha.L. had occurred on a different occasion than the other act involving Ha.L. The jury found that petitioner committed lewd acts against two victims under the age of 14, within the meaning of California Penal Code § 667.61, subdivisions (b) and (e)(5).
2. Petitioner was sentenced to state prison for a determinate term of 12 years (the six-year middle term on count VII plus a fully consecutive six-year term on count I), plus an indeterminate term of 45 years to life (three consecutive terms of 15 years to life) on counts II, III and VIII. The court imposed middle terms on counts IV, V, and VI, but ordered the sentences on those counts stayed pursuant to California Penal Code § 654. (2 Clerk's Transcript ("CT") at 324-27.)
3. Petitioner filed a timely appeal in the California Court of Appeal, Third Appellate District. (Lodged Document ("LD") 1.) Petitioner raised only his first evidentiary claim in the direct appeal. (LD 1.) After the appeal was fully briefed, petitioner filed a supplemental opening brief in which he alleged his consecutive and full-term consecutive sentences violated the Sixth and Fourteenth Amendments pursuant to Cunningham v. California, 549 U.S. 270 (2007). (LD 4.) On August 28, 2007, the California Court of Appeal affirmed the judgment. (LD 7.)
4. On October 1, 2007, petitioner filed a petition for review in the California Supreme Court. (LD 8.) On October 31, 2007, the California Supreme Court denied the petition for review without comment. (LD 9.)
5. On January 5, 2009, petitioner filed the instant petition.
[Petitioner] "married" M.S. in 1992 when he was 16 years old and she was 14 years old. They had a "cultural wedding ceremony," which was recognized within their "Mien culture," but they did not have a "legal state marriage." The couple proceeded to have three daughters together: Hi.L., born in November 1992;
K.L, born in April 1995; and Ha.L., born in August 1999.
In May 2003, the family relocated from Corning to a two-bedroom apartment in Citrus Heights. The parents and the youngest daughter shared the master bedroom. M.S. worked nights and [petitioner], who was not employed, watched the girls while she was away.
In 2004, the parents' marriage "kind of became distant," which M.S. attributed to [petitioner's] lack of employment. They had previously discussed ending their marriage, which in the Mien culture requires the consent of both sets of parents and other family members. "In a lot of cases," something "bad" or "very terrible" has to happen in order for a marriage to be dissolved.
In May 2004, [petitioner] drove to Redding with the two older daughters to pick up the youngest daughter who had been staying with his parents. The three girls spent the night at their grandparents' home while [petitioner] visited friends. He returned to his parents' home at 5:00 a.m. the next morning and went to bed. That afternoon, [petitioner] and the girls returned home.
Later that day, Ha.L. complained to M.S. "[t]hat her butt hurt."*fn3 M.S. observed Ha.L. scratching her vaginal area. M.S. undressed Ha.L. and saw a spot of dry blood, about the size of a quarter, on her panties. M.S. asked [petitioner] and the older daughters if they knew of anything happening to Ha.L., but none of them knew.
M.S. visually inspected Ha.L.'s vaginal area and saw nothing unusual. She bathed Ha.L. and stored the panties in the pocket of her bathrobe. M.S. telephoned [petitioner's] mother to inquire about the blood and was told that [petitioner] had slept in the same bedroom as his three children.
The next morning, Hi.L. told M.S. she "thought she knew what happened." Hi.L. said that [petitioner] might have done it," because he had also "done it to her." Upon questioning, an apparently scared Hi.L. explained that [petitioner] had put his penis in her; she had seen "[w]hite stuff" come out of his penis; he had done this three times; the first time was in January 2004 and the last was in April 2004; and she had bled the day after the first incident. Hi.L. started to cry as she related this information to her mother.
M.S. was "very shaken" by the information she had been told. The next day, she took Hi.L. and Ha.L. to a Roseville hospital. Citrus Heights Police Officers Barbara West and Carol Mims responded to the hospital's call of suspected child abuse. Mims spoke to Hi.L., who explained what [petitioner] had done to her.
Officer West spoke with Ha.L., who asked whether people go to a hospital "only when they're hurt." Ha.L. told West that her "butt hurt ," because "Dad hurt my butt." She explained that he hurt her "with his hand," and she "mimicked it" by rubbing "her hand up and down the front of her shorts in the pubic area."
The girls were placed in protective custody, and [petitioner] was arrested later that day. M.S. returned to the apartment and gave Ha.L.'s panties to a detective. The detective observed an apparent blood stain about the size of a quarter. The stain tested positive for blood.
Before they were placed in foster care, the girls were examined at the U.C. Davis Child and Adolescent Abuse Resource and Evaluation Center. Cathy Boyle, a pediatric nurse practitioner, conducted a general physical examination and a colposcopic examination of Hi.L. Boyle examined Hi.L.'s private parts and became concerned that she had "possible injuries from a penetrating injury. . . ." Using the colposcope, Boyle observed "areas of narrowing in the posterial [sic] part of her hymenal rim," which Boyle believed could be healed injuries. Boyle also examined Ha.L., but she did not use the colposcope and did not observe any irregularities.
The next day, Hi.L. and Ha.L. gave videotaped interviews at the medical center.
After the girls were returned to M.[S].'s custody, she brought them back to U.C. Davis for further examination by Boyle. In examining Hi.L., Boyle observed "persistent narrowing" in two locations on her hymen. Boyle believed these could be healed injuries. She opined that child abuse was "highly suspected." After reviewing photographs of the examination with a team of professionals, Boyle concluded that the physical findings "could be consistent with a healed injury."
Boyle reexamined Ha.L., and this time she used the colposcope. She observed several irregularities to Ha.L.'s hymen. If the irregularities resulted from an injury, that injury could have been the source of blood observed on Ha.L.'s panties.
Hi.L., who was 12 years old at the time of trial, described in detail the sexual acts that [petitioner] had committed upon her. Ha.L., who was five years old at the time of trial, testified that [petitioner] had touched her in a way that "wasn't okay." Defense
Dr. James Crawford, a pediatrician and the medical director of the Center for Child Protection at Children's Hospital in Oakland, testified for the defense as an expert in the examination for, and identification of, sexual assault of children. Dr. Crawford reviewed the medical records and photographs from the examination of Hi.L. and Ha.L.
Dr. Crawford deemed the two areas of Hi.L.'s hymen that had concerned Cathy Boyle to be superficial notches, which are seen as often in children who have not been sexually assaulted as in those who have been. Thus, the notches offer no insight into whether the child has been injured in the past.
Dr. Crawford agreed that the area of Ha.L.'s hymen that had concerned Cathy Boyle was a "possible defect," but he could not say for sure whether there was an indentation at that location. Even if there was one, it would not offer insight into whether there had been a prior injury, because indentations in that area of the hymen are frequently found in children who have not been abused.
Dr. Crawford testified that blood on underwear is "not that uncommon" in pediatrics. It may result from several ...