The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Tulare County Superior Court, Petitioner was convicted of seven counts of completed and attempted lewd and lascivious acts upon a child under 14 years old (Cal. Penal Code*fn2 , § 288(a)). In addition, multiple-victim allegations (§ 667.61(b)) and substantial sexual conduct allegations (§ 1203.66(a)(7), (8)) were found true, with minor exceptions.
On August 31, 2005, Petitioner was sentenced to an aggregate term of forty-seven years to life in prison.
Petitioner filed a timely notice of appeal. On October 3, 2008, the California Court of Appeal, Fifth Appellate District, affirmed the conviction.
Petitioner filed a Petition For Rehearing with the California Court of Appeals, which was summarily denied on October 22, 2008.
Petitioner then filed a Petition For Review in the California Supreme Court, which was summarily denied on January 6, 2009.
Petitioner filed the instant Petition For Writ Of Habeas Corpus on March 9, 2010. Respondent filed an answer to the Petition on June 3, 2010.
[Petitioner] is mildly mentally retarded. Just after he turned 18 years of age in 2001, [Petitioner] sexually molested the two daughters of his mother's boyfriend. Both of the girls were under 14 years of age. They reported the events to their father, who then reported the matter to the police.
[Petitioner] was charged with 10 counts of lewd and lascivious acts with a child under 14 years of age. (Pen. Code, § 288, subd. (a).) The information also contained multiple-victim and substantial-sexual-conduct allegations. (See Pen. Code, §§ 667.61, subd. (b) & 1203.066, subds. (a)(7) & (a)(8).) [Petitioner] was convicted as charged on counts one, three, and six through ten, and the enhancement allegations were found true, with minor exceptions. On counts two, four, and five, [Petitioner] was found guilty of attempt as a lesser included offense.
[Petitioner] was sentenced to prison for a term of 17 years plus two consecutive terms, each 15 years to life. [Petitioner] filed a timely notice of appeal.
Other facts directly pertinent to this appeal include the following:
A. The competency proceedings
Approximately 20 months after the filing of the original felony complaint, defense counsel moved the court for suspension of criminal proceedings and appointment of psychologists to evaluate [Petitioner's] competency to stand trial. The court appointed two examiners and suspended criminal proceedings pursuant to Penal Code 1368. After an additional 18 months, on February 2, 2005, a jury trial on [Petitioner's] competency to stand trial began. Four psychologists testified. Two said [Petitioner] was incompetent by virtue of his mental retardation and two said he was competent to stand trial, notwithstanding his disability. On February 8, 2005, the jury returned a verdict of competent to stand trial.
In August of 2005, defense counsel requested a new hearing on competency. He said he had just become aware that [Petitioner] was hearing voices and, in response to the instructions by the voices, cutting himself with a razor blade. Medical records from the jail were submitted showing that [Petitioner] first reported hearing voices and first cut himself in 2003 and that these incidents occurred with some frequency thereafter, continuing at least through August 4, 2005. A medical report dated nine days before the hearing on the renewed motion stated that [Petitioner] was no longer hearing voices. Defense counsel also filed a declaration stating that he now believed he had made a mistake by not testifying at the original hearing. Counsel said he would testify now, and should have testified at the original hearing, that, "in my opinion, there's almost nothing that I can communicate with this young man [Petitioner] that he understands."
The court denied the motion for a further competency hearing. The court noted that the newly submitted evidence showed the periods of self-destructive behavior included periods during which [Petitioner] had been examined by the psychologist experts, that [Petitioner] had displayed no delusional behavior in court, and that the potential impact of testimony by defense counsel was speculative ("I have no way of knowing whether it would have made a difference or not.")
[Petitioner] filed a petition for writ of mandate in this court. We denied the petition on the basis that [Petitioner] had "failed to show that his declarations present any significant new facts which could have affected the experts' opinions or the inferences from the facts presented during the prior proceeding regarding the nature of [Petitioner's] understanding of the criminal proceedings. [Petitioner] has failed to explain how the new circumstances indicate that [Petitioner] is now incompetent to stand trial." (Joel Gomez v. Superior Court of Tulare County (Aug. 19, 2005 F048673).)
After [Petitioner] was convicted, counsel moved for a new trial on the basis of the trial court's denial of the motion for a second competency hearing. The new-trial motion was denied.
B. Motion to exclude [Petitioner's] statement to police At the criminal trial, [Petitioner] moved to exclude his statement to investigating officers on the basis that he did not validly waive his Miranda rights. He argued that the declaration of the psychologist who had seen [Petitioner] at various stages of his life concluded that [Petitioner] had the mental capabilities of a 12-year-old child and that he therefore could not have given a knowing, voluntary, and intelligent waiver of his Miranda rights. The trial court noted that [Petitioner] had been found competent to stand trial and that there was no evidence from which the court could conclude [Petitioner] had been "incompetent" at the time of the police interview. The court denied [Petitioner's] motion to exclude the statement, and a recording of the statement was played to the jury during the criminal trial.
C. Composition of the jury
During selection of the jury in the criminal trial, [Petitioner] alleged the prosecutor was using peremptory challenges to remove Hispanic prospective jurors. Counsel pointed out that four of the five prospective jurors challenged by the prosecutor were Hispanic, as is [Petitioner]. The trial court denied the motion and the renewed motion. The trial court stated it had "observed [the jury selection] and I'm satisfied that there's been no violation here." Eight of the 12 members of the seated jury had Hispanic surnames, as did two of the three alternate jurors.
D. The "idiocy" instruction
The jury was instructed with CALJIC No. 4.47 ("Defense of Idiocy"). That instruction tells the jury that, in the law, "[a]n idiot is a person who lacks capacity to commit crime, and therefore is not responsible for what would otherwise be criminal conduct." As relevant here, the instruction states that the defense is applicable when, as a result of "mental deficiency," the defendant was incapable of "[d]istinguishing right from wrong" at the time of the commission of the alleged crime. [Petitioner] did not request modification of the instruction. The jury impliedly rejected the defense of idiocy.