The opinion of the court was delivered by: James V. Selna United States District Judge
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and the Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected.
In addition to the matters discussed in the Report, Petitioner asserted an instructional error claim, noted in the printed (as opposed to the hand-written) portion of the petition at page 6 ("Ground Three") and addressed in Petitioner's Objections beginning at page 20. Specifically, Petitioner asserts that the trial court erred by instructing the jury with CALJIC No. 10.60 after reading CALJIC No. 2.27. CALJIC 2.27 provides, as follows, the familiar rule that even one credible witness sometimes can suffice to prove key facts:
You should give the testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends.
See CT 161; RT 1222. CALJIC 10.60 reminds jurors that, in sex-crime cases, "[i]t is not essential to a finding of guilt on a charge of rape that the testimony of the witness with whom sexual relations is alleged to have been committed be corroborated by other evidence." See CT 177; RT 1235.
Petitioner's initial "explanation" of this claim made no mention of
jury instructions at all and, thus, was entirely unhelpful.*fn1
He clarifies this claim in his current Objections to the
Report, explaining that "when these two instructions are given
together, the two imply that a preferential credibility standard is to
apply to the testimony of the complaining witness in a sex case . . .
." Obj. at 20.
Even assuming, for the sake of discussion only, that Petitioner states a federal claim, as opposed to one challenging a discretionary application of wholly state-law-based evidentiary rules, the claim lacks merit. This Court rejected a nearly identical claim in Denard v. Director, Dept. Of Corrections, 967 F. Supp. 387, 395-97 (C.D. Cal 1997). Petitioner Deautri Denard asserted that reading CALJIC Nos. 10.60 and 2.27 to the jury violated his federal constitutional rights as Petitioner asserts here, by improperly implying that the alleged victim's testimony was to be given especial weight. (The only difference is that Denard challenged each instruction independently. Petitioner asserts that the violation occurred in reading both of them.) The Court explained as follows that neither instruction misled the jury into giving undue weight, or improperly lessened scrutiny, to the testimony of a witness asserting that Denard had raped her:
In People of the Territory of Guam v. McGravey, 14 F.3d 1344 (9th Cir. 1994), the Ninth Circuit considered a non-corroboration instruction similar to CALJIC 10.60. [Footnote omitted.] After reviewing the non-corroboration instruction within the context of the other instructions given the jury, the Ninth Circuit determined that "the jurors were not misled into believing they were to attach any special weight to the testimony of the alleged victim. In fact, quite to the contrary, the judge gave numerous instructions which made it plain to the jury that it was to treat the testimony of the alleged victim no differently from the testimony of any other witness." Id. at 1346-47.
Here, the jury was advised that it was "the sole judge of the believability of a witness and the weight to be given the testimony of each witness," and the trial court enumerated the factors that the jury could consider in determining witness credibility. [Citations to trial record.] Furthermore, the jury was admonished that it was not "to decide an issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which appeals to your mind with more convincing force." [Citations.] [T]he combined effect of these instructions was to make clear that the testimony of each witness was to be judged by the same standard." McGravey, 14 F.3d at 1347.
In addition, the jury was instructed that the prosecution must prove its case beyond a reasonable doubt. [Citations.] As noted by the California Supreme Court, instructing the jury about reasonable doubt "places a heavy burden of persuasion on a complaining witness whose testimony is uncorroborated. CALJIC 10.60 does not affect this instruction but, . . . when all the instructions are given, 'a balance is struck which protects the rights of both the defendant and the complaining witness.'" People v. Gammage, 2 Cal.4th 693, 701, 7 Cal.Rptr.2d 541, 546, 828 P.2d 682 (1992) (citation omitted).
It is readily apparent that CAIJIC 2.27 has no effect on the prosecution's burden of proof; it merely instructs the jury that, under California law, the uncorroborated testimony of a single witness, if believed, can be sufficient to prove a fact. The burden is still on the prosecution to prove the petitioner's guilt beyond a reasonable doubt. Thus, CALJIC 2.27 does not dilute the beyond a reasonable doubt standard but "merely suggests careful review when a fact depends on the testimony of one witness." Gammage, 2 Cal.4th at 701, 7 Cal.Rptr.2d at 546, 828 P.2d 682 . . . . 967 F. Supp. at 395-96. Denard is persuasive guidance. Petitioner's situation is not distinguishable. As in Denard, the jury's additional instructions included admonitions that
(1) jurors were the sole judges of witnesses' credibility, CT 156, RT 1219 (CALJIC No. 2.20); (2) several factors governed credibility determinations, CT 156, RT 1219-20 (another portion of CALJIC No. 2.20); (3) a greater number of witnesses or other evidence will not necessarily be more persuasive than a smaller number, CT 159, RT 1221 (CALJIC No. 2.22); and (4) a conviction required proof of guilt beyond reasonable doubt. CT 167, RT 1227-28 (CALJIC No. 2.90); see also RT 1216-17, 1227, 1238. Jurors also were ...