FINDINGS AND RECOMMENDATIONS
Petitioner Kumar, a state prisoner, proceeds pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner stands convicted of various sex offenses involving four victims in the Sacramento County Superior Court, case number 01F01700, for which he is currently serving an indeterminate term of 100 years to life in prison, plus an additional determinate term of 145 years. Based on a thorough review of the record and applicable law, it is recommended that the petition be denied.
The following recitation of facts is taken from the unpublished opinion of the California Court of Appeal, Third District, on direct review of petitioner's convictions. Since these facts have not been rebutted with clear and convincing evidence, they are presumed correct.
28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). From August 2000 to February 2001, a group of young men picked up prostitutes on Stockton Boulevard in Sacramento, kidnapped and sexually assaulted them. Their crime spree ended after they picked up a teenager who was not a prostitute. She escaped after the sexual assault and called the police. One of her attackers was arrested at the scene and the others shortly thereafter.
In a 68-count information, the People charged six defendants with various crimes arising from serial gang rapes against eight victims. The court severed the trial of one defendant, and the case proceeded to trial against the remaining five defendants [including petitioner Kumar] with two juries. Seven counts involving one victim were dismissed after she failed to appear at trial. The two juries convicted defendants of most, but not all, of the charged offenses. Each defendant was sentenced to a lengthy prison term, including a life sentence. ...
As with most sexual assault cases, this case turned on the credibility of the victims, both as to what crimes occurred and who the perpetrators were. All of the victims' credibility was bolstered by the number of victims; seven women told very similar stories. Corroboration was also provided by DNA and other forensic evidence. In the case of Naryan, who had a separate jury, the prosecution also presented his three statements to the police in which he admitted some of the conduct at issue. The strength of the evidence varied as to each victim. The prosecution did not present the case in chronological order; rather, the strongest case, in which the victim was not a prostitute and reported the assault immediately, was presented first.
People v. Deo, et al., 2008 WL 2404210 at 1 (Cal. Ct. of App. 3rd Dist. June 13, 2008).
Petitioner was charged and convicted in connection with four of the eight victims: Lori, C.W., and Rebecca, and A.T. Evidence was presented at trial with respect to the offenses against those victims as follows:
Counts 34 to 47 On the night of February 21, 2001, 17-year-old Lori S. went to a pool hall in Modesto with her sister and her cousin. They met her sister's friends there and went to the home of one of the friends and drank wine coolers. Around midnight, Lori had a fight with her sister and left the house. She found herself alone in an unfamiliar neighborhood, in a bad area of Modesto. She was chased by a German Shepherd dog, that took one of her sandals. Lori ran to a schoolyard; the dog was barking and she was crying.
A gold Honda drove by and stopped. Inside were five men: Amit Narayan, who lived in Modesto, and four of the defendants. Deo was the driver, Narayan was in the front passenger seat, Kumar was behind the driver, and Nalesh Prasad was in the middle. Prasad was Amit Narayan's brother-in-law and Narayan and Amit Narayan were related. Deo had borrowed the car earlier that day from Narayan's employer at an Arby's Restaurant.
When the car stopped, Kumar got out and retrieved Lori's sandal for her. He seemed nice and offered her a ride, so she got in the car. The men spoke to each other in a language other than English and Lori thought they were Indian. They dropped off Amit Narayan.
The car went to a Chevron gas station where they bought gas. Kumar got out and bought some water or gum. The car then made a wrong turn to take Lori home. When she pointed this out, she was told one of the men was late for work, so they had to take him to work first. They got on Highway 99 and drove north. While on the highway the men smoked out of a glass pipe. They got off the highway somewhere past Harney Lane and drove around for five minutes.
The car stopped by the side of the road. Kumar grabbed Lori's breasts and she nudged him off. Deo said, "Shut the fuck up, bitch. Do what we say. We have a gun." Kumar stretched out her shirt and ripped her bra so she took them off. Prasad grabbed her arms and Kumar pulled off her pants and underwear. Lori would not open her legs so Kumar grabbed her neck until she opened them. Kumar put his mouth on Lori's vagina and then put his fingers inside her. Lori begged him to stop, telling him she was only 15 and a virgin. Kumar raped her and grabbed her breasts. Lori testified, "It hurt so bad."
Deo got in the car and told Lori he would take her home after he was done. He raped her and grabbed her breasts.
Nalesh Prasad was next; he stuck his penis in her. When he was finished raping her, he got out of the car.
Narayan got in, pulled down his pants, and played with his penis. He took Lori's head and forced her mouth on his penis, saying: "suck my dick." Lori started to gag and lifted up. Narayan put her legs over his shoulders and raped her. He grabbed her breasts. Narayan took Lori out of the car and ordered her to suck Prasad's penis. He forced her mouth on Prasad's penis and she gagged.
Narayan tried to put his penis in her anus. Then he put it in her vagina and raped her.
When another car came by the men forced Lori back into the car and told her to put her clothes on. Someone gave her a sweater. They drove off, getting lost before they found the highway. They told Lori to put her head down. While her head was on Narayan's lap, he grabbed her hand and put it on his penis for a second. When the car stopped, Kumar, Deo and Prasad got out. Narayan still held Lori's head down. Kumar got in the car and drove around the corner. Lori got in the front seat and Narayan drove to a Shell gas station. The car stopped next to a black truck. Narayan and Lori got out of the car and Kumar got out of the truck. Kumar handed Narayan a tin box and said, "here's the stuff." Inside the tin box were baggies containing a white substance. Kumar said he had to drop the car off and would return. He drove the gold car away. Kumar returned the car to Narayan's boss.
After the others left, Lori was crying in the truck. Narayan said he felt bad; he was sorry and would like to take her to breakfast. Lori said she needed to go to the bathroom. She got out of the truck and walked slowly to the gas station. When she saw a woman she began crying. She went to the clerk, whispered she had just been raped, and asked him to call 911. The woman took the license plate number of the truck. A tape of the 911 call was played to the jury. The police responded and arrested Narayan. Kumar was arrested that evening. Deo was arrested March 1.
Narayan was interviewed that day. His videotaped statement was played only to Narayan's jury. In it, Narayan recounted picking up a crying Lori. He described the assault: "Jaz fucked, Ravin fucked, my cousin fucked ... and then I did." According to Narayan, Jaz took her clothes off; he told her he had a gun.
A sexual assault examination revealed Lori's labia was reddened from the 10-to 3-o'clock positions. There was a tear at the 6 o'clock position. Her cervix was reddened and her vaginal walls were tender and painful. The injuries were acute. The findings were consistent with her history of a forced sexual assault. Bruises on Lori's legs were consistent with her assailant prying her legs apart. A hair was found in her cervix.
A fiber analysis found fibers similar to those of the Honda's seat on Lori's clothing. Fibers similar to her red fleece top were found on Kumar and Narayan's clothing. A fiber similar to Narayan's shirt was found on Lori's clothing.
DNA analysis of a swab from Lori's neck matched Deo's profile. The probability of finding another individual with the same DNA profile was 1 in 10,000 East Indians, 1 in 460,000 African Americans, and 1 in 35,000 Hispanics.FN3 DNA analysis of the hair matched Narayan's profile, with a probability of 1 in 30 trillion.FN4 The confidence rate for all statistical analysis of DNA matches was 10-fold, meaning the actual probability was within the range of 10 times less or 10 times greater.
FN3. The probability statistics for mixed samples containing DNA of both the victim and the assailant were recalculated, deleting from the product rule alleles that were shared by the victim and the assailant, resulting in significantly lower numbers than first reported. FN4. In determining which databases to use for statistical purposes, the district attorney offered to use only the lowest frequency without mention of the ethnicity of the database. Only Narayan accepted this proposal. For the other defendants, three databases were used: East Indian, African American, and Hispanic. The defense was invited to present the Caucasian database or any other database they choose.
Deo, Kumar and Narayan were convicted of four counts of sexual battery. (Pen.Code, § 243.4, subd. (a).) Narayan was convicted of another count of sexual battery, of which Deo and Kumar were acquitted. Deo, Kumar and Narayan were convicted of five counts of rape in concert (Pen.Code, § 264.1), three counts of oral copulation in concert (Pen.Code, § 288a, subd. (d)), and one count of penetration with a foreign object in concert (Pen.Code, §§ 264.1/289). As to all of these counts, enhancements for kidnapping (Pen.Code, § 667.61, subds.(d)(2) & (e)(1)) and multiple victims (Pen.Code, § 667.61, subd. (e)(5)) were found true.
Counts 19 to 26 About two weeks earlier, 21-year-old C.W. was walking home through the K-Mart parking lot at Stockton Boulevard and Fruitridge Road around midnight. C.W. was a prostitute with a crack cocaine habit, but she denied she was working at the time. A tan car with three men in it drove up and the backseat passenger asked if she knew where they could get some marijuana. Hoping to get a ride home, C.W. got in the car. The three men were Indian; Narayan was in the backseat, Kumar the front passenger and Deo was driving.
When they passed her street without turning, C.W. asked what was going on. Narayan reached over and touched her breast. She told him he could not do that unless he paid and he just laughed. C.W. continued to argue and Narayan said they were going to his house to get some money.
Narayan pulled out a gun and told C.W. she was going to do what they told her. She began crying and told them they could just pay her. When the car stopped in a park, Deo told C.W. to take her clothes off. He opened her door, telling her to get out because they were going to walk. She refused. Deo got back in the car and again ordered her to take off her clothes. She complied.
Deo pulled out some condoms and passed them around. Narayan passed the gun to the front seat. He took out his penis and told C.W. to orally copulate him. Then he raped her. During the rape he told her to be quiet; if she let him take the condom off he would not let them kill her. Narayan took the condom off. When he tried to put his penis in her anus, she screamed. He raped her again. Narayan ejaculated and got out of the car.
Kumar passed the gun to Deo and got in the back seat. He pulled down his pants, put on a condom, and told C.W. to orally copulate him. Afterwards he made her get on top on him. He tried to sodomize her and then raped her, ejaculating. He opened the car door and threw the condom on the ground.
Deo then got in back and quickly raped C.W.. He wore a condom. After the assault C.W. asked for her clothes; she wanted her crack cocaine and her pipe. Once she mentioned the drugs, the men wanted them. They searched her clothes and the floor of the car looking for them. After C.W. was dressed, Deo ordered her out of the car. When she got out, she screamed and Deo hit her. The car took off. As it left, C.W. turned and got a partial license plate number.
She ran to a nearby house and asked the woman inside to call the police because she had been raped. When the police arrived, they took her to the UC Davis Medical Center. She told the police the assailants took a necklace, her money and a pipe. She gave the license plate number as 4ETX-7.
C.W.'s sexual assault examination showed several little fissures or tears at the vaginal opening. The injuries were acute, occurring in the previous 24 hours. The nurse practitioner concluded the exam was consistent with C.W.'s description of the assault. C.W. described her assailants as American Indians.
C.W. identified Narayan and Kumar at trial. She testified the driver, Deo, wore a baseball cap. She saw his face when he was on top of her, but conceded she did not get a good look. When she was first shown a photographic lineup that included a three-year-old DMV photo of Deo, she did not recognize him. Detective McBethChilds showed her a second lineup, using a recent booking photo of Deo, and C.W. then identified him. She said Deo was the driver. She was certain; "I'll never forget that face." The detective testified Deo looked different at trial; his hairstyle was different and his face was fuller.
Deo owned a Toyota Corolla with the license plate number 4ETX165. Fibers on C.W.'s pants and shirt were similar to fibers from the seat of the Toyota Corolla. Narayan and Deo's fingerprints were found in the car. Two condoms were collected from the scene.
DNA analysis was performed on a vaginal swab, two condoms, and C.W.'s pants. DNA on the vaginal swab matched Narayan, as did that on the interior of one condom, with a probability of 1 in 30 trillion. The second condom had DNA that matched Kumar's profile. The probability of another individual with the same profile was 1 in 20,000 in the East Indian database, 1 in 3 million in the African American database, and 1 in 320,000 in the Hispanic database.
In his taped statement, Narayan said one time they picked up a girl and took her to a park. Deo, Kumar and he had sex with her and then drove her back.
Deo, Kumar and Narayan were convicted of robbery (Pen.Code, § 211); a personal use of a firearm allegation (Pen.Code, § 12022.5, subd. (a)(1)) was found true as to Deo and Kumar, but not as to Narayan. The three men were convicted of two counts of attempted sodomy in concert (Pen.Code, §§ 664/286, subd. (d)) with an enhancement for use of a firearm or deadly weapon. (Pen.Code, § 12022.3, subd. (a).) They were also convicted of three counts of rape in concert and two counts of oral copulation in concert, all with personal use, kidnapping and multiple victim enhancements.
People v. Deo, supra, at 1 -5.
Counts 58 to 68 On the night of February 5, 2001, 20-year-old Rebecca J. was walking down Stockton Boulevard from Motel 6.FN6 She saw a man at a pay phone who looked suspicious. Just then a car pulled up. As the car pulled into the lot, she began to walk in the other direction. She was grabbed from behind by a bald man. He put a gun to her head and told her to get in the car. Someone put a jacket over her head.
FN6. Rebecca testified she was jogging or power walking. She denied she was soliciting prostitution, although she had several arrests for prostitution.
The men were all East Indian. They told her to shut up and keep her head down. She was scared to death.
After a 45-minute ride, the car stopped at a construction site where there were three trailers and a billboard. The bald man told her to stay in the car. The other two men got out and broke into one of the trailers by breaking the window. Meanwhile, the bald man held a gun to Rebecca's head and raped her.
The bald man then took her to the bed in the trailer and raped her again. He put his finger in her vagina several times. He tried to put his penis in her anus, but she screamed and he stopped. He still had the gun.
While Rebecca was being raped, the other two men smoked drugs. When the bald man finished, the driver came over and raped her while the bald man used drugs. Then the passenger, the man at the pay phone, took his turn and raped her.
One by one, in the same order of bald guy, driver and man at pay phone, the three men forced her to orally copulate them by putting a gun to her head. After each ejaculated, she spit it on the floor. After the assault, the men took things from the trailer in a milk crate. The bald man walked her back to the car. She got in back and they put her head down and a jacket over her head. After a 45-minute drive, the bald man let her out. He told her not to turn around until they left.
Rebecca ran three or four blocks to a police station. She encountered a police officer and told him she had been raped by three male East Indians. She described the weapon as a black semi-automatic handgun, ...