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Frank Espinoza Ramirez v. Brenda Cash

May 13, 2011

FRANK ESPINOZA RAMIREZ, PETITIONER,
v.
BRENDA CASH, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND*fn1

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Tulare, following his conviction by jury trial on August 26, 2008, of ten counts of lewd and lascivious conduct with a child under fourteen years of age. He was sentenced to serve a determinate term of 8 years plus two consecutive indeterminate terms of 15 years to life in state prison.

Petitioner filed a timely notice of appeal. On March 18, 2010, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (LD*fn2 4.) Petitioner then filed a petition for review in the California Supreme Court. (LD 5.) The petition was summarily denied on June 9, 2010. (LD 6.)

On December 7, 2010, Petitioner filed the instant federal habeas petition. He claims the trial court erred in instructing the jury with CALCRIM No. 1193 by erroneously directing the jury to consider the expert witness testimony "in evaluating the believability of [the victims'] testimony." (See Petition at 5.) On February 25, 2011, Respondent filed an answer to the petition. Petitioner did not file a traverse.

STATEMENT OF FACTS*fn3

Two of defendant's nieces told their mothers that defendant had touched them over and under their clothing when they were preteens. After police investigation, defendant was charged with 10 counts of child molestation (Pen.Code, § 288, subd. (a)) in an information that also included allegations pursuant to Penal Code sections 1203.066, subdivision (a)(8) (substantial sexual conduct) and 667.61, subdivision (b) (multiple victims).

At trial, the victims, V.Z. and K.W., testified concerning the molestations. In addition, one of defendant's adult nieces testified defendant had molested her when she was a preteen. Defendant's stepdaughter testified defendant molested her when she was about 16 years of age. The prosecution presented other witnesses, including Anthony Urquiza, Ph.D. Urquiza is a clinical psychologist and testified as an expert concerning CSAAS. He testified that he did not "know very much about" the specifics of the present case and that his testimony was intended only to "provide information about sexual abuse." FN1

FN1. This appeal does not present issues arising from the content of Urquiza's testimony. To summarize that testimony briefly, Urquiza testified there are five recognized preconceptions many people share concerning child sexual abuse and that these preconceptions were generally recognized as not true with respect to many victims of childhood sexual abuse. He identified the following as parts of the syndrome: (1) Secrecy concerning the important and traumatic events, even though there might be a common misperception that children "are going to go run and tell somebody" when something bad happens to them; (2) a feeling of helplessness, even though there might be a common misperception that a victim would run away or otherwise try to protect herself; (3) emotional detachment from the events, resulting in a flat affect when recounting the events, even though there might be a common misperception that these traumatic events would be reflected in display of strong emotions in recounting the events; (4) delayed and unconvincing disclosure, resulting in a gradual and sometimes inconsistent disclosure of the molestations, even though there might be a common misperception that a child would immediately and fully recount the traumatic events; and (5) recantation of allegations after there is pressure applied by other family members (Urquiza did not identify a specific misperception this factor is meant to address). Urquiza testified that CSAAS is not a diagnostic tool, but was designed to help others understand that certain behaviors do not indicate that a child was not abused. On cross-examination, defense counsel delved into the issue of false accusations of abuse. Urquiza subsequently testified that false accusations by the child who claims abuse are very rare. Even the more frequent false accusations by adults on behalf of children occur only in the range of 1 to 5 percent of cases.

The defense presented testimony from other relatives of defendant. They testified the victims had never told them defendant had molested them and that the victims did not seem afraid of or uncomfortable around defendant.

The jury found defendant guilty of all charged counts and found true the additional allegations. The court sentenced defendant to a determinate sentence of eight years in prison, plus two consecutive terms of 15 years to life. Appellant filed a timely notice of appeal. (LD 4.)

DISCUSSION

I. ...


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