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Gregory Allen Pepper v. James A. Yates

March 31, 2011

GREGORY ALLEN PEPPER, PETITIONER,
v.
JAMES A. YATES, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DISPOSITION

Petitioner, Gregory A. Pepper, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Pepper is currently in custody of the California Department of Corrections, incarcerated at the Pleasant Valley State Prison in Coalinga, California. Respondent has answered.*fn1 Pepper has not filed a traverse.

I. FACTUAL

The following factual background is taken from the reasoned decision of the California Court of Appeal in this case:

In January 1999, N., age 11, and B., age 8, along with their mother, father and younger brother, moved to undeveloped land in Nevada County. From January until approximately August 1999, the family lived in a 10-foot by 16-foot, one-room cabin with a loft. The mother and father slept in the loft, while the children slept below in sleeping bags. Beginning in May 1999, N. and B. regularly slept in a tent located about 15 feet outside the cabin, within the mother's earshot. In August 1999, the family moved from the cabin into an 8-foot by 32-foot travel trailer. The mother and father slept at one end of the trailer and the children slept at the other end.

[Pepper] was a longtime friend of the father. [Pepper] regularly visited the property and, between July and October 1999, often stayed the entire weekend. When he visited in July and August 1999, he slept "downstairs" in the cabin or in the tent. After the family moved into the travel trailer, [Pepper] slept inside the trailer on a cot.

[Pepper] began engaging in sexual acts with N. while the family was living in the cabin. He began by reaching inside N.'s sleeping bag and fondling N.'s penis. Later, [Pepper] "performed oral sex" on N. N. estimated [Pepper] performed oral sex on him "every other night" [Pepper] visited while the family was living in the cabin. The frequency of the sexual acts increased when N. and B. began sleeping in the tent. In addition to [Pepper] fondling and performing oral sex on N., [Pepper] "was having [N.] perform similar acts on him." N. refused [Pepper's] requests to have "anal sex"; however, [Pepper] "would stick his penis in between [N.'s] butt cheeks" and "rub his penis back and forth." The fondling and oral sex continued after the family moved into the trailer, but the "simulated" anal sex did not. B. "was not always there" when [Pepper] engaged in sexual activity with N.; sometimes [Pepper] and N. were alone. B. never saw anything "inappropriate" occur between [Pepper] and N. when the three of them were in the tent.

[Pepper] began engaging in sexual acts with B. approximately one month after the family moved into the trailer. [Pepper] forced B. "to give him head" approximately eight times, and [Pepper] "put his mouth on [B.'s] penis" approximately eight times. In addition, [Pepper] touched B.'s penis and "masturbate[d]" him about five times and B. did the same to [Pepper] about five to eight times. [Pepper] also put his penis in B.'s "butt" one or two times and asked B. to do the same. All of the sexual acts involving B. occurred at night in the trailer while N. was sleeping two feet away and the mother and father were sleeping 30 feet away.

The mother never heard anything "suspicious" or saw anything "inappropriate" when [Pepper] slept near the children. While the children were within the mother's earshot, sometimes it was difficult for her to hear because the father "snore[d] ferociously."

N. and B. told their father about the sexual acts involving [Pepper] in January 2004, and the family reported the incidents to the Nevada County Sheriff's Department.

[Pepper] did not testify at trial. The defense was that the sexual acts never occurred. During her closing argument, defense counsel pointed to inconsistencies in N.'s and B.'s testimony and argued that had the sexual acts occurred, someone, in particular the mother, would have heard or seen something.*fn2

II. BACKGROUND/ PRIOR PROCEEDINGS

Pepper was charged with one count of continuous sexual abuse of a child (Cal. Penal Code § 288.5) (count 1) and four counts of lewd or lascivious acts on a child (Cal. Penal Code § 288(a)) (counts 2-5). Each count included an allegation of substantial sexual conduct with a child under age 14 (Cal. Penal Code § 1203.066(a)(8)). It was further alleged that Pepper had previous convictions for committing a lewd act on a child and indecency with a child, both serious and violent felonies (Cal. Penal Code §§ 667(b)-(i), 1170.12(a)). On February 17, 2005, the jury found Pepper guilty of all charges. The jury also found that Pepper had engaged in substantial sexual conduct with a child under age 14. Pepper waived a jury trial on his previous convictions, and the trial court found the two prior convictions to be true.

On June 17, 2005, the trial court sentenced Pepper to state prison for twenty-five years to life for the crime of continuous sexual abuse of a child on Count 1. The court doubled the sentence pursuant to Cal. Penal Code §§ 667(b) through (i) and 1170.12, for a total term of fifty years to life. On each of Counts 2 through 5, the court sentenced Pepper to a consecutive state prison term of twenty-five years to life. Each sentence was doubled pursuant to Cal. Penal Code §§ 667(b) through (i) and 1170.12, and an ...


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