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Curtis Duhart v. P.L. Vasquez

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


October 5, 2012

CURTIS DUHART, PETITIONER,
v.
P.L. VASQUEZ, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on June 7, 2012. Respondent filed an Answer on June 29, 2012. Petitioner filed a Traverse on August 13, 2012, which alleged new, unexhausted claims.

On August 26, 2012, the Court issued an Order re Exhaustion, ordering Petitioner to file: (1) a document stating Petitioner's intent to delete and abandon all of his unexhausted claims; or (2) a document requesting dismissal of the entire proceeding without prejudice; or (3) a motion for a stay. On September 21, 2012, Petitioner filed a "Motion to Delete and Abandon All of Petitioner[']s Unexhausted Claims Asserted in Petitioner[']s Traverse," signifying Petitioner's intent to delete and abandon his unexhausted claims.*fn1

BACKGROUND

An Amended Information charged Petitioner with one count of rape of an incompetent person, "Jane Doe," in violation of California Penal Code section 261(a)(1) and one count of misdemeanor dependent adult abuse in violation of California Penal Code section 368(b)(1) (Clerk's Transcript ["C.T."] 95-96). The Information also alleged that Petitioner had served four prior prison terms within the meaning of California Penal Code section 667.5(b), and had suffered a prior conviction qualifying as a strike under California's Three Strikes Law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d) (C.T. 97-98).*fn2

A jury found Petitioner guilty of attempted rape of an incompetent person and misdemeanor dependent adult abuse (Reporter's Transcript ["R.T."] 468 - 471-1; C.T. 157-58, 166-67). The trial court found true three of the prior prison term allegations and the allegation of a strike-qualifying conviction (R.T. 479-82, 489; C.T. 168). Petitioner received a nine-year prison sentence (R.T. 530-34; C.T. 201-05).

The Court of Appeal affirmed the judgment, with directions to correct the abstract of judgment to show that the conviction was by jury, not by the court (Respondent's Lodgment 5; see People v. Duhart, 2011 WL 4063190 (Cal. App. Sept. 14, 2011). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 7). Petitioner filed a habeas corpus petition in the California Supreme Court, which that court also denied summarily (Respondent's Lodgments 8, 9, 10, 11).

SUMMARY OF TRIAL EVIDENCE

The prosecution's evidence showed the following:

Officer Douglas Loreman

On March 19, 2010, at approximately 10:00 p.m., Douglas Loreman, a municipal officer for the City of San Bernardino, observed an SUV in the parking lot of a public park (R.T. 101-02). The park closed at 8:00 p.m., and deputies routinely contacted persons parked there after the closing time (R.T. 102). Loreman and his partner, Deputy Wilson, pulled their patrol car behind the SUV and shined their spotlights on the vehicle (R.T. 103). The passenger side rear door of the SUV was open (R.T. 104).

Loreman first approached the driver's side of the SUV but saw no occupants on that side (R.T. 105). Loreman then went to the passenger side, where he saw Petitioner pulling up his pants (R.T. 105-06). Jane Doe was sitting up in the rear passenger seat putting on her clothing (R.T. 106). Jane appeared confused and had a blank expression on her face (R.T. 107). Loreman took Jane to the rear of the vehicle (id.). With a blank expression, Jane told Loreman: "He was raping me" (R.T. 108). Jane was almost emotionless (R.T. 110). She was "just like a complete blank, like somebody hit the delete button and there was nothing there" (R.T. 113). Jane provided her name and birthdate, but her responses were delayed (id.). She did not converse (R.T. 114). Loreman contacted the police department (R.T. 111-12).

Officer Brian Wilson

Municipal officer Brian Wilson, Loreman's partner, testified that, when Loreman activated the patrol car spotlight, the rear passenger door of the SUV was wide open, and Wilson saw Petitioner lying down on the rear back seat making "several pelvic thrusts" resembling the motions of sexual intercourse (R.T. 127-28). Petitioner appeared to be on top of someone who appeared to have her leg around Petitioner (R.T. 127, 145, 147). Petitioner slid or jumped from the back seat and grabbed for his pants (R.T. 127). Petitioner was naked below the waist and his pants were around his ankles (R.T. 129). Wilson let Petitioner pull up his pants (id.).

Wilson saw Jane Doe lying on the rear seat, naked from the waist down (R.T. 130). Jane said: "He raped me" (R.T. 131). When the officers tried to get her name, Wilson could tell that Jane had some kind of mental deficiency (id.). Jane had a "kind of deer in the headlights look" and appeared bewildered (id.). Jane asked Wilson if he minded if she got dressed, which was not a normal reaction (R.T. 132). Wilson had difficulty getting Jane's name and date of birth (R.T. 133). She gave her first name, after a struggle, had difficulty spelling her last name, and was unable to give her birthdate (R.T. 133, 137). Jane appeared afraid, was slow in responding, did not know how to spell her last name, and did not know her date of birth (id.). It appeared to Wilson that Jane had developmental disabilities (R.T. 135).

Ann Rowney

Ann Rowney, forensic nurse and sexual assault nurse examiner, interviewed and examined Jane Doe after the assault (R.T. 239). Rowney initially thought Jane suffered from echophelia because Jane would repeat what Rowney said to her (R.T. 240). Rowney asked Jane the questions from the standard sexual assault questionnaire, but Jane would not answer the questions (R.T. 240-41). She would repeat the questions back to Rowney, but not answer them (R.T. 241). When Rowney asked whether "he put anything into [Jane's] vagina," Jane repeated the word vagina but did not answer (R.T. 242). When Rowney altered the question to use the term "private part" instead of "vagina," Jane still did not answer the question (id.). Rowney became concerned about Jane's developmental delays after approximately ten minutes (R.T. 247). Rowney decided she would not be able to get answers, and conducted the type of physical examination she uses on a person who is unconscious due to alcohol or some other sort of injury (R.T. 241, 243). During the examination, however, Rowney also asked Jane various questions concerning the incident, using language Rowney would use with a child (R.T. 273-78, 283-84, 288).

Jane's emotional state was "flat" (R.T. 248). She was not emotive, and did not cry, but was "very matter of fact" and "non-reactive" (R.T. 248-49). Rowney saw no evidence of injuries, and the physical examination was "non-conclusive" as to whether intercourse had occurred or whether intercourse had been consensual (R.T. 249-51).

Dr. Edward Frey

Dr. Frey is a psychologist focusing on persons with developmental disabilities (R.T. 40-41, 53). An IQ score of 50-70 indicates "mild mental retardation," and a score of 71 to 84 signifies "borderline intellectual functioning" (R.T. 47). Jane Doe's verbal IQ was 58, her performance IQ was 62, and her full scale IQ was 56 (R.T. 55). Her score for social adaptive abilities, such as communication, daily living skills and socialization, was consistent with moderate retardation (R.T. 69-70).

Jane received social services at the Inland Regional Center operated by the State Department of Developmental Disabilities (R.T. 42, 60). Dr. Frey recorded that Jane needed a great deal of prompting to complete daily activities such as caring for herself and bathing (R.T. 62). Jane worked for three hours a day at a job she obtained through a program for persons with developmental disabilities (R.T. 63). However, she had problems counting money and making change (R.T. 71-72). In conversation, Jane was verbal, but sometimes had difficulty putting her thoughts into words (R.T. 64). She was pleasant and cooperative, but somewhat timid and seemed to lack self-confidence (R.T. 65). She answered many questions "I don't know" (id.). Jane read at a 1.4 grade level and her spelling was 2.0 (R.T. 68). Her composite score for adaptive behaviors was in the "high/moderate" level of delay, consistent with mild mental retardation (R.T. 69-70). On the adaptive skills test, on a scale of 1 to 100, Jane scored a 60 for daily living skills, 58 for socialization, 46 for adaptive behavior composite, and 29 for communication skills (R.T. 97-98). Dr. Frey concluded from his observations of Jane that she showed substantial handicaps in the areas of learning, communication, independent living skills and capacity for independence (R.T. 75-76). Dr. Frey agreed that Jane came across as someone who was mentally retarded (R.T. 73).

Dr. Frey did not discuss sex with Jane (R.T. 77). Asked whether, in his opinion, Jane can "consent to sexual intercourse," Dr. Frey said he did not know because he did not "assess her for competency in that manner" (R.T. 83). However, he testified that, in his opinion, mild retardation does not necessarily prevent a person from "consenting to sexual intercourse" (R.T. 84).

Craig Goldsberry

Craig Goldsberry worked for the San Bernardino City School District, teaching independent living skills, work skills and vocational skills to students with "moderate-severe" disabilities (R.T. 150). Goldsberry had known Jane Doe for three years, and she had been his student for two years (R.T. 158). Jane was mentally retarded (R.T. 163).

Jane worked in different departments at Valley College, doing routine janitorial or sorting type work (R.T. 170-73). She worked at the Children's Center setting out food and cleaning up (R.T. 174-75). She was never left in charge of children, because she would not know what to do in case of an emergency (R.T. 174). If she finished a job, she might not know what to do next (R.T. 173, 188-89). Jane found it difficult to make change, but she could take the bus to certain memorized stops (R.T. 170-71). Jane's disability was not one that would improve over time (R.T. 169).

Jane was given regular instruction in personal safety, but the personal safety lessons had to be repeated every day (R.T. 175-76). Asked what she would do if a stranger approached or she were asked to get into a car, she gave the correct answer ("no"), but "her actions were not consistent with that," and she needed constant reminders (R.T. 176). Jane was given instruction in hygiene, but she often came to school with an odor (R.T. 177). She would say that she understood personal care tasks in the abstract, but when she came to school staff could tell she was not following good hygiene habits (R.T. 177-78). Jane's hygiene was an ongoing issue (R.T. 178).

Jane was very cooperative, at times too cooperative, which was a concern (R.T. 167-68). Jane would always do what she was told, but later she would mention that she had not wanted to do it (R.T. 168). She would do things she may not have wanted to do just to "go along" (R.T. 180). The staff attempted to help Jane be more self-assertive (R.T. 168). Jane was a quiet student who did not speak up for herself without prompting (id.). It was common for her to go along with people without voicing her opinion, and she was observed being easily manipulated (R.T. 179). Goldsberry had concerns about Jane's ability to understand her health and hygiene needs and her ability to be independently responsible, issues which were "very difficult for her" (R.T. 180). In conversing with Jane, Goldsberry kept his conversation very "concrete" and "simple" (R.T. 182-83). It took Jane noticeably longer to respond to questions than it would a non-retarded person (R.T. 183-84).

Vicki Smith

Vicki Smith, the consumer service coordinator for the Inland Regional Center, was familiar with Jane Doe (R.T. 291, 296). Smith helped Jane obtain instruction in areas such as budgeting, shopping for groceries and maintaining hygiene (R.T. 301). Jane needed help with budgeting, scheduling medical appointments, shopping, and food preparation (R.T. 301-02). As long as Jane was in a supportive living environment, as opposed to a facility like a nursing home, she would need assistance in budgeting and shopping for food for the rest of her life (R.T. 308-09).

Jane responded to simple questions, but complex questions made her uncomfortable (R.T. 310). If she did not understand, she would "completely clam up, both physically and in conversation" (id.). Jane was hesitant to speak up or to speak ill of people (R.T. 312-13).

The Center offered a six-part series on sexuality designed for people suffering from mental retardation, among other things (R.T. 313-14). Jane might have been able to understand the material and reiterate it if questioned, but would only be able to apply approximately 25 percent of it, because of her retardation (R.T. 314).

Jane Doe*fn3

Jane did not know why she was in court (R.T. 317). Jane said she just moved to a house with two little girls (R.T. 318). Jane liked to walk to a friend's house to watch television (id.). Jane said she liked to watch the news, but she did not know what she liked about the news (R.T. 319). Jane remembered taking a fitness class with her teacher, Mr. Goldsberry (id.). She said she took a class concerning a job, but did not know what kind of job she had done (R.T. 320). Prompted, she remembered working at the library dusting and cleaning tables, and working at the Children's Center setting and cleaning tables (R.T. 320-21). She said she worked in the kitchen at Valley College but did not know what she did there (R.T. 321). Asked whether she cleaned floors, she said no (id.). Asked whether she made food, she responded that she cleaned the pots (id.). She said she liked cleaning the pots but could not explain why (R.T. 321-22).

Jane said she remembered the night she was at the park (R.T. 322). Jane recalled walking with her 16 year old cousin DeeDee, whom Jane had known a long time (id.). Jane remembered when DeeDee was a baby, but did not respond when asked where babies came from (id.). Jane said she played with DeeDee when DeeDee was a baby, but did not know what kinds of things she did (R.T. 322-23).

Jane recalled getting into the car with Petitioner and going to the park (R.T. 323). Jane said Petitioner took off her clothes (R.T. 324). Jane first said Petitioner did not do anything else, but then said he took off his clothes (id.). Asked what Petitioner did after he took his clothes off, Jane said "I don't know" (id.).

Jane recalled talking to an officer about what had happened at the park (id.). However, asked again to relate what happened in the park after Petitioner took off his clothes, Jane said, "I don't know" (R.T. 325). She gave the same response when asked what happened in the car (id.).

Answering leading questions, Jane then said Petitioner was naked in the car and he did something to her ( id.). She said Petitioner was in the front seat, and Jane was in the back seat, but Petitioner did not move (id.). Asked what happened in the car, Jane again answered, "I don't know" (id.). She said she did not want to say the word (R.T. 326). Answering another leading question, Jane testified that "fuck" happened (id.). Jane said Petitioner was on top of her (R.T. 326-27). Asked what Petitioner did, Jane responded: "Rape?" (id.). Asked what that word meant, Jane said she did not know (R.T. 327). Jane said she remembered a class with Mr. Goldsberry where they may have used a word like rape, but when asked what rape was, Jane responded again, "I don't know" (id.).

On cross-examination, answering leading questions, Jane said she had taken a class with Mr. Goldsberry concerning the human body, and had learned that boys had a penis and girls did not, but girls had babies and boys did not (R.T. 329). Jane recalled a time when she started bleeding "in her private area," but when asked whether someone had explained that the bleeding would happen every month, she said, "I don't know" (R.T. 330). Asked whether she wanted to talk about that, she said "No" (id.).

Jane testified she remembered learning that babies happened when a boy and girl had sex (R.T. 331). She said someone at school told her sex was bad, but other friends told her it was not a bad thing (id.).

Asked about the events leading up to the offense, Jane said she recalled getting into Petitioner's car (R.T. 332). She did not ask to go to the park (id.). She said she did not kiss Petitioner, but remembered holding his hand (id.). She remembered taking off her clothes (R.T. 332-33). Answering leading questions, she said that when she took off her clothes Petitioner moved to the back seat, and she helped him take off his pants (R.T. 333).

On redirect, the prosecutor asked whether Jane could describe what happened when she was in the car (R.T. 333). Jane replied, "I don't know where" (id.). Jane said she remembered she was not supposed to get in a car with strangers, and said she did not know Petitioner (R.T. 333-34). She did not know what a condom or rubber was (R.T. 334). Asked "what is it when a man puts a penis in a woman's vagina?" Jane responded, "I don't know" (id.). She said Petitioner had pulled her pants down, pulled his pants down, and had gotten on top of her (R.T. 335-36). She did not know what STD's or safe sex was (R.T. 336). Asked what you do when someone touches you in a way you do not want them to touch you, Jane responded, "I don't know" (id.).

On recross, Jane remembered that someone can get AIDS from having sex, and said that someone had shown her a condom at school and told her the boy put it over his private part (R.T. 337). She said she remembered that when boys and girls have sex it is possible they could make a baby, and that a condom would prevent a baby (R.T. 338).

Officer Sherry Vasilis

Police officer Sherry Vasilis arrived at the park and contacted Jane Doe (R.T. 341-42). Jane did not appear "able to answer questions in a normal capacity" (R.T. 342). Jane's demeanor that night was the same as it was when Jane testified in court (id.). To communicate with Jane, Vasilis needed to slow down her own speech and use simple terms (id.). If Jane did not appear to understand a question, Vasilis would try to ask the question in another way, as if Vasilis were speaking to a young child (id.).

Jane told Vasilis she had been walking with a cousin when a man offered her a ride (R.T. 344-45). Jane got in the car and they drove to the park (R.T. 349). Vasilis began asking questions of a sexual nature, using the terms "penis" and "vagina" (id.). Jane was not responsive, so Vasilis modified her approach by, for example, using the word "dick" instead of "penis" (R.T. 350). Vasilis spoke with Jane on the way to the hospital, and at the hospital (R.T. 353). Jane confirmed that penetration had occurred (R.T. 354). In the patrol car, Vasilis sat next to Jane and observed that Jane had "very poor hygiene" consisting of "a mixture of feminine issues as well as body odor" (id.). There was an "overwhelming," bad smell coming from Jane (id.).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The evidence allegedly was insufficient to show that:

a. the victim was incapable of legally consenting to sexual intercourse; and

b. Petitioner knew or reasonably should have known that the victim suffered from a mental disability that prevented her from having the capacity legally to consent;

2. The trial court allegedly violated the constitution by excluding evidence of the victim's prior sexual history; and

3. The trial court's special instruction concerning the victim's pregnancy allegedly prejudiced Petitioner.

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 129 S. Ct. 823, 831 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S. Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").

In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).

DISCUSSION*fn4

I. Petitioner's Challenges to the Sufficiency of the Evidence Do Not Merit Habeas Relief.

A. Governing Legal Standards

On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 317 (1979). A verdict must stand unless it was "so unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012). In applying these principles, a court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense "is purely a matter of federal law." Id. at 2064.

Jackson v. Virginia establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). "First, a reviewing court must consider the evidence in the light most favorable to the prosecution." Id. (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 130 S. Ct. 665, 673 (2010).*fn5 At this step, a court "may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. Nevils, 598 F.3d at 1164 (citation omitted). "Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. (citations and internal quotations omitted); see also Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) ("it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial"). The State need not rebut all reasonable interpretations of the evidence or "rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson [v. Virginia]." Id. (citation and internal quotations omitted).

At the second step, the court "must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court "may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. (citations and internal quotations omitted; original emphasis).

In support of his insufficiency claims, Petitioner relies in part on material assertedly contained in police reports and/or pretrial interviews, and testimony from the preliminary hearing (see, e.g., Petition, pp. 35, 73-76; Traverse, pp. 16-19).*fn6 In reviewing the sufficiency of the evidence, however, the Court is limited to reviewing the evidence adduced at trial. See Jackson v. Virginia, 443 U.S. at 324 (in ruling on a constitutional challenge to the sufficiency of the evidence, the Court may consider only the "record evidence adduced at the trial"); see also Cullen v. Pinholster, 131 S. Ct. at 1398 (federal habeas review under section 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits"). This Court cannot grant habeas relief on Petitioner's challenges to the sufficiency of the evidence unless the state court's decision constituted an "unreasonable application of" Jackson v. Virginia. See Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005), cert. denied, 546 U.S. 1137 (2006).

B. Sufficiency of Evidence that Jane Doe Was Incapable of Legally Consenting to Sexual Intercourse with Petitioner

Petitioner contends the evidence was insufficient to show Jane Doe lacked the capacity to consent legally to sexual intercourse with Petitioner. The California Court of Appeal rejected this claim in a reasoned decision (Respondent's Lodgment 5, pp. 5-9; see People v. Duhart, 2011 WL 4063190, at *3-4).

California Penal Code section 261(a)(1) forbids sexual intercourse with a person who is "incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act." The prosecution must prove, "as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent." Id. Consent is "defined to mean positive cooperation in act or attitude pursuant to an exercise of free will." Cal. Penal Code § 261.6. "The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved." Id. A previous dating relationship is insufficient to constitute consent. Id.

"Legal consent [to sexual intercourse] presupposes an intelligence capable of understanding the act, its nature, and possible consequences." People v. Thompson, 142 Cal. App. 4th 1426, 1434, 48 Cal. Rptr. 3d 803 (2006) (quotations and brackets omitted; quoting People v. Griffin, 117 Cal. 583, 49 P. 711 (1897), overruled on other grounds, People v. Hernandez, 61 Cal. 2d 529, 536, 39 Cal. Rptr. 361, 393 P.2d 673 (1964)). The issue of whether an alleged victim possessed the mental capacity sufficient to give legal consent is an issue for the jury. Id. (citation and internal quotations omitted). The alleged victim's behavior, demeanor and clarity on the stand are relevant to this issue. See People v. Miranda, 199 Cal. App. 4th 1403, 1415-16, 132 Cal. Rptr. 3d 315 (2011). Expert testimony is not required. People v. Thompson, 142 Cal. App. 4th at 1437.

In the present case, a rational juror could have found that Jane Doe was incapable of legally consenting to sexual intercourse with Petitioner. The evidence showed that Jane was mentally retarded, with a full-scale IQ of 56, deficits in cognitive, academic and social interaction functioning, and substantial handicaps in the areas of learning, communication and independent living skills (R.T. 73-76, 163). Her reading and spelling were at the first or second grade level (R.T. 68). Although Jane could take the bus and perform simple work tasks, she could not perform several living skills without assistance (R.T. 170-74). She was unassertive, suggestible and slow to respond (R.T. 168, 179, 183). To communicate with Jane, it was necessary to use simple, concrete words (R.T. 182-84, 241, 243, 273-74, 283-84, 288, 349-50). She needed constant reminders regarding personal safety skills (R.T. 176-77). She often came to school with an odor, and although she supposedly understood concepts such as washing, brushing her teeth and wiping herself, there was concern that she was not following through with good hygiene habits (R.T. 178-79). At the time of the offense, Jane had poor hygiene and emitted an overwhelming odor (R.T. 354). The officers and the sexual assault examiner noted her "blank" or "flat" appearance on the day of the offense (R.T. 107, 131, 248).

Furthermore, Jane's trial testimony showed she did not understand many simple words and questions. Asked about the incident, Jane repeatedly gave the response "I don't know" (R.T. 324-25, 327, 333-34, 336). Significantly, she said she did not know what to do when someone touched her in a way she did not want (R.T. 336). A rational juror could have found from all the evidence that Jane was incapable of legally consenting to sexual intercourse with Petitioner. See People v. Griffin, 117 Cal. at 587 (testimony by the medical superintendent of state home for the mentally disabled that the victim was "feeble-minded" sufficed to show that the victim was incapable of giving consent); People v. Miranda, 199 Cal. App. 4th at 324-26 (victim was a fifteen-year-old special education student with cerebral palsy; her unresponsiveness to defendant's questions during sexual assault, her childlike description of the assault at trial, and her difficulty in answering questions at trial, including her one-word responses to leading questions and unintelligible responses to other questions, supported conclusion that she lacked the mental capacity legally to consent); People v. Thompson, 142 Cal. App. 4th at 1436-40 (victim had Down's syndrome, lived in group home where she performed simple tasks, could not make change or use public transportation on her own, and had to be reminded to use soap when bathing; it was apparent to anyone who conversed with her that she was mentally impaired; although she had some idea of what sexual intercourse was and knew it could result in pregnancy, her understanding was that of a child); People v. Mobley, 72 Cal. App. 4th 761, 85 Cal. Rptr. 2d 474 (1999), disapproved on other grounds, People v. Trujillo, 40 Cal. 4th 165, 51 Cal. Rptr. 3d 718, 146 P.3d 1259 (2006) (evidence sufficient where victims of homosexual assault were developmentally delayed but technically not mentally retarded; one victim had an approximate IQ of 80, and could read, dress himself, hold down a part-time job, make purchases, use a microwave and use public transportation, but had trouble applying information to a new situation, and had only "limited ability" to make informed choices; the other victim had an IQ of 70 or 75 (equivalent to a mental age of 11), could read, take public transportation and hold down a job; expert testified that both victims would have difficulty dealing with threatening homosexual advances); People v. Boggs, 107 Cal. App. 492, 290 P. 618 (1930) (victim could cook and do housework, but had mind of 10-or-12-year-old child; expert testified victim lacked the mental ability to protect herself from the 'ordinary vicissitudes of life"; although victim testified at trial that she understood what sexual intercourse was and that it could result in pregnancy, her understanding was "essentially that of a child," and she did not understand that sex could have other serious consequences; evidence held sufficient).

For the foregoing reasons, the Court of Appeal's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on this claim.

C. Sufficiency of Evidence that Petitioner Knew or Reasonably Should Have Known That Jane Doe Lacked the Mental Capacity Legally to Consent to Sexual Intercourse with Petitioner

In a related claim, Petitioner contends the evidence was insufficient to prove Petitioner knew or should have known that Jane Doe lacked the mental capacity legally to consent to sexual intercourse with Petitioner. Petitioner raised this claim in his habeas corpus petition filed in the California Supreme Court, which that court denied summarily (Respondent's Lodgments 8, 11). Therefore, this Court must determine "what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S. Ct. at 786.

The California Supreme Court reasonably could have concluded that there was ample evidence from which a rational juror could have concluded that Petitioner knew or should have known that Jane lacked the capacity to consent to sexual intercourse with Petitioner. Such evidence included: (1) the testimony of Officers Loreman, Wilson and Vasilis concerning Jane's blank, flat expression and lack of responsiveness on the night of the offense; (2) Jane's "overwhelming" body odor; (3) the testimony that interviewing officers realized shortly after encountering Jane that Jane suffered from a significant mental disability; (4) Jane's demeanor and behavior at trial; and (5) the testimony concerning Jane's IQ and developmental disabilities. See People v. Hillhouse, 109 Cal. App. 4th 1612, 1623, 1 Cal. Rptr. 3d 261 (2003) (evidence sufficient to show defendant knew or should have known that victim with IQ of under 70 was mentally incapable of consent to sexual acts; even disregarding expert's testimony that victim was obviously mentally retarded, two police officers determined, within thirty minutes or less of encountering victim, that victim was mentally disabled).

For the foregoing reasons, the California Supreme Court's rejection of this claim was not contrary to, or an objectively unreasonably application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Petitioner is not entitled to habeas relief on this claim.

II. Petitioner's Challenge to the Exclusion of Evidence of the Victim's Prior Sexual History Does Not Merit Habeas Relief.

A. Background

California's "Rape Shield Law," California Evidence Code section 1103(c)(1), provides that evidence of specific instances of a complaining witness' sexual conduct is not admissible to prove consent by the complaining witness. Such evidence is admissible to attack the credibility of the complaining witness, provided that the court finds the evidence relevant and not excluded by California Evidence Code section 352. See Cal. Evid. Code § 782, § 1103(c)(5). California Evidence Code section 352 provides that "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

Prior to trial, Petitioner's counsel filed a motion to introduce the victim's prior sexual conduct pursuant to California Evidence Code section 782 (C.T. 85-92). Counsel argued the evidence was needed to attack Jane's credibility (id.). Counsel attached to the motion an affidavit stating that Jane had told an investigator that Jane was five months pregnant, that she knew the father, and that Petitioner was not the father (C.T. 92). The court ruled the evidence inadmissible under the Rape Shield Law (R.T. 37-38). The court indicated that it might permit Petitioner's counsel to cross-examine any expert who opined that Jane lacked the capacity legally to consent to sex with Petitioner by asking the expert whether the expert had considered Jane's sexual encounter resulting in pregnancy (R.T. 33-38). Yet, the court prevented Petitioner's counsel from questioning Dr. Frey concerning whether a person's prior sexual contacts would be a factor Frey would want to know in assessing ability legally to consent to sex, saying the prosecutor had not yet "open[e]d the door" (R.T. 91-92).*fn7

It was obvious at trial that Jane then was approximately five or six months pregnant (R.T. 225). Further, Vicki Smith mentioned that Jane was living in a special home for pregnant women and would need help with prenatal care (R.T. 302). The court gave a limiting instruction telling the jury that Jane was pregnant, that Petitioner was not the father of Jane's baby, and that the jury should not consider these facts "in any way in your deliberations or decision" (id.; see also R.T. 465-55).*fn8

The Court of Appeal ruled that Jane's alleged prior sexual relationship with her child's father was irrelevant to the issue of her capacity legally to consent to sex with Petitioner, and that in any event any error was harmless (Respondent's Lodgment 5, pp. 9-11; see People v. Duhart, 2011 WL 4063190, at *5).

B. Discussion

In limited circumstances, the exclusion of crucial evidence may violate the Constitution. See Holmes v. South Carolina, 547 U.S. 319, 319 (2006) ("[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense") (citations and internal quotations omitted); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ("Chambers"); Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004), cert. denied, 544 U.S. 919 (2005) ("The Supreme Court has made it clear that the erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to present a defense.") (citations and internal quotations omitted).

However, "Chambers . . . does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state . . . rule excludes favorable evidence." United States v. Scheffer, 523 U.S. 303, 316 (1998). "While the Constitution . . . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." Holmes v. South Carolina, 547 U.S. at 320 (citations omitted); see also Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009). Thus, "the Constitution permits judges to exclude evidence that is repetitive . . . , only marginally relevant or poses an undue risk of harassment, prejudice or confusion of the issues." Holmes v. South Carolina, 547 U.S. at 326-27 (citations, internal brackets and quotations omitted).

In Michigan v. Lucas, 500 U.S. 145 (1991), the Supreme Court held that a defendant does not have an unconditional right to introduce evidence of a sexual assault victim's prior sexual history. Id. at 149. The Court specifically rejected the lower court's ruling that preclusion of such evidence is unconstitutional in all cases where the victim had a prior sexual relationship with the defendant. Id. at 149. The Supreme Court ruled that the right to present otherwise relevant evidence "is not without limitation," and "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Id. (citations and internal quotations omitted). However, the Court declined to rule whether preclusion was justified in that particular case. Id. at 153.*fn9

Petitioner argues that the trial court erred by excluding evidence of Jane's alleged prior sexual history for the purposes of:

(a) attempting to show capacity legally to consent to sex with Petitioner; and (b) attempting to impeach Jane's credibility. Petitioner is not entitled to habeas relief on either of these arguments.

1. Alleged Admissibility on Issue of Capacity Legally to Consent to Sex with Petitioner

In ruling that evidence of Jane's alleged sexual relationship was not pertinent to the issue of whether Jane had the mental capacity legally to consent to sex with Petitioner, the Court of Appeal relied on People v. Thompson, supra. In People v. Thompson, the defendant challenged the sufficiency of the evidence to show that a victim of sex crimes was incapable of giving legal consent. People v. Thompson, 142 Cal. App. 4th at 1440. Defendant argued, among other things, that if the victim were incapable of legally consenting to sex with the defendant, it would, always and everywhere, be a crime for her to have sex with anyone, even her boyfriend. Id. The Court of Appeal rejected this argument:

We do not agree . . . that [the victim's] incapacity to consent in this case necessarily debars her from all future consensual sexual activity. The relevant statutes require proof that the victim was "at the time incapable of . . . giving legal consent . . ." [citation]. "It is important to distinguish between a person's general ability to understand the nature and consequences of sexual intercourse and that person's ability to understand the nature and consequences at a given time and in a given situation." [citation]. . . .

Id. "[A] developmentally disabled person may give 'assent' to a sexual touching, so that it is not against his or her will, yet be unable to give legal consent." Id. at 1437; see also People v. Giardino, 82 Cal. App. 4th 454, 98 Cal. Rptr. 2d 315 (2000) ("if the victim is so unsound of mind that he or she is incapable of giving legal consent, the fact that he or she may have given actual consent does not prevent a conviction of rape"; citation omitted).

Nothing in Michigan v. Lucas prevents a trial court from applying a state rape shield law to preclude evidence that a developmentally disabled rape victim had a previous sexual relationship with another person. It was reasonable for the Court of Appeal to conclude that the alleged fact that Jane had sex with others was not probative of the issue of whether she was capable of giving legal consent to sex with Petitioner. See Jackson v. Nevada, 688 F.3d 1091, 1106-07 (9th Cir. 2012) (exclusion of evidence of victim's prior acts of prostitution not unconstitutional; such evidence had "no bearing" on petitioner's defense of consent); Farris v. Ryan, 396 Fed. App'x 358, 359 (9th Cir. 2010), cert. denied, 131 S. Ct. 1497 (2011) (California Court of Appeal's decision upholding exclusion of victim's prior conviction for prostitution and her "price list," pursuant to California's Rape Shield Law, not contrary to Michigan v.

Lucas); Galvan v. Yates, 2012 WL 1413381, at *6 (N.D. Cal. Apr. 23, 2012) ("Although Galvan argues the evidence of [the victim's] sexual intercourse with other men goes to a major element of his defense of consent, [the victim's] consent to sexual intercourse with other men is not a defense to Galvan's charge."). The fact of a prior sex act was not disputed in the present case; Jane Doe's evident pregnancy effectively established that fact. Apparent actual consent to sex with Petitioner (as distinguished from the mental capacity legally to consent) also was not significantly disputed at trial. Therefore, evidence of actual consent to a prior sex act would have been irrelevant to the only significantly disputed consent-related issue in the present case: Jane Doe's mental capacity legally to consent to sex with Petitioner.

In several cases, the Ninth Circuit has held that a trial court may not constitutionally exclude evidence that the alleged victim of a sexual assault made prior false or exaggerated accusations of sexual assault. See Jackson v. Nevada, 688 F.3d at 1098-1104 (9th Cir. 2012) (error to exclude evidence that victim previously had made claims of sexual assault by the petitioner which were contradicted or uncorroborated by the evidence observed by responding or investigating officers, where victim's testimony was "crucial" to prosecution's case and the petitioner denied committing the alleged sexual assault); Holley v. Yarborough, 568 F.3d 1091, 1096-99 (9th Cir. 2009) (evidence that the child victim had made prior claims concerning her own sexual appeal was relevant to impeach her, because it could show "a tendency to exaggerate or overstate, if not outright fabricate"); Fowler v. Sacramento County Sheriff's Dep't, 421 F.3d 1027, 1038-39 (9th Cir. 2005) (evidence that victim made previous false or exaggerated accusations of sexual assaults by other men improperly excluded). These cases are inapposite. The excluded evidence here, i.e., evidence of Jane's prior sexual activities with the father of her unborn child, did not concern any allegedly false or exaggerated reports of prior sexual assault made by Jane. See Jackson v. Nevada, 688 F.3d at 1106-07 (although trial court erred in excluding evidence of victim's previous false allegations of sexual assault by the petitioner, trial court did not err in excluding evidence of prior sex acts by victim; such evidence had "no bearing on Jackson's theory of the defense, nor would it suggest that [the victim's] testimony was motivated by any improper motive or bias"). Petitioner did not dispute that he attempted to have sex with Jane; his defense was consent.*fn10

In LaJoie v. Thompson, 217 F.3d 663, 671-72 (9th Cir. 2000), the Ninth Circuit held it unconstitutional to exclude evidence that other men previously had sexually abused the child victim. The LaJoie Court held that the evidence was relevant to explain the victim's injuries and to explain how the victim could have learned about sexual acts and male genitalia other than through rape by the petitioner. Here, however, the evidence of Jane's prior sexual conduct was not offered to explain any injuries or to explain Jane's knowledge of the mechanics of sex. As discussed above, and as the state court held, evidence of prior sexual conduct was not relevant to the issue of Jane's mental capacity legally to consent to sex with Petitioner. Cf. Wood v. State of Alaska, 957 F.2d 1544, 1551 (9th Cir. 1992) ("a rape victim's sexual history with others only goes to show a generalized attitude toward sex that says little if anything about the victim's attitude towards sex with the defendant").*fn11

In sum, the state courts reasonably concluded that exclusion of this evidence did not deny Petitioner a fair trial. See Holmes v. South Carolina, 547 U.S. 319, 326-27 (2006). Therefore, the state courts' conclusion was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. 770, 785-87 (2011).

Furthermore, and in any event, any error was harmless under the harmless error standard for federal habeas corpus cases set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993) ("Brecht"). Brecht forbids a grant of habeas relief for a trial-type error unless the error had a "substantial and injurious effect or influence" on the outcome of the case. Id. at 637-38. In light of all the evidence of Jane's mental disability described above, this Court is unable to conclude that the exclusion of Jane's prior sexual history had any substantial or injurious effect or influence on the jury's finding regarding Jane's mental incapacity legally to consent to sex with Petitioner. See id.

2. Alleged Admissibility as Impeachment Evidence

To the extent Petitioner contends the exclusion of evidence of Jane's prior sexual activity to show Jane's lack of credibility violated the Confrontation Clause, Petitioner is not entitled to habeas relief.

"The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (original emphasis; citation and internal quotations omitted). Hence, the Confrontation Clause does not prevent a trial judge from imposing "reasonable limits" on cross-examination "based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Vasquez v. Kirkland, 572 F.3d 1029, 1036 (9th Cir. 2009), cert. denied, 130 S. Ct. 1086 (2010) (quoting Delaware v. Van Arsdall, 475 U.S. at 679).

In the present case, the key issue was not the reliability or credibility of Jane's trial testimony, but rather her mental capacity legally to consent. Petitioner argues that the proffered evidence would have impeached Jane's testimony that she did not know at the time of trial what Petitioner did after he took his clothes off (see Petition, attachment, pp. 89-90, citing R.T. 324-26). According to Petitioner, the proffered evidence would have shown that Jane did understand what Petitioner had done because Jane had done the same thing before (id.). Immediately after the cited testimony regarding not knowing what Petitioner did, however, Jane testified that Petitioner was naked, that he was on top, and that "fuck" happened (R.T. 326). Thus, to the extent the credibility of Jane's preceding testimony that she did not know what Petitioner did was at issue, the jury heard Jane's own testimony directly contradicting the preceding testimony. Additionally, as described above, the jury heard other evidence that Jane assertedly understood what sex was and the possible consequence of pregnancy. Hence, the proposed evidence of Jane's sexual history, to the extent offered for impeachment to show that Jane knew what sex was and knew the consequences of sex, was largely, if not entirely, cumulative.

Furthermore, any error in excluding evidence of Jane's sexual history for impeachment purposes was harmless under the Brecht standard. As discussed above, Jane essentially impeached herself with her inconsistent testimony. The exclusion of additional impeachment evidence in the form of Jane's sexual history had no substantial and injurious effect or influence on the verdict. See Brecht, 507 U.S. at 637-38. Petitioner is not entitled to habeas relief on this claim.

III. Petitioner's Claim of Instructional Error Does Not Merit Habeas Relief.

A. Background

Vicki Smith mentioned in her trial testimony that Jane was receiving assistance for prenatal care and living in a home where she could receive parenting instruction (R.T. 302). The court told the jury:

The complaining witness is -- Jane Doe, she is pregnant. It is not the defendant's baby. You are not to consider this fact in any way in your deliberations or your decision. . . .

(Id.).

Later, while discussing jury instructions, Petitioner's counsel asked the court to tell the jury that it could consider Jane's pregnancy for the purpose of evaluating whether she understood the act, nature and consequences of sexual conduct (R.T. 403). The court refused the request (R.T. 404-05). In concluding instructions, the court gave the following special instruction:

The complaining witness is pregnant. It is not the defendant's baby. Do not discuss that fact as it relates to the complaining witness' testimony. You may, however, consider this fact in a very limited way for the limited purpose of considering whether or not the charge in Count 2, Penal Code section 368(c) [misdemeanor dependent adult abuse], has been proven beyond a reasonable doubt.

(R.T. 465-66).

Petitioner contends that, in the absence of an instruction that Jane's pregnancy was the result of an alleged "loving and intimate relationship" with her purported boyfriend, the court's instruction could have led the jury to speculate that Jane had been "victimized by yet another rapist" (Petition, attachment, p. 106). The Court of Appeal ruled that: (1) the issue was either waived or barred on appeal as invited error; and (2) in any event, the given instruction was not prejudicial (Respondent's Lodgment 5, pp. 12-14; see People v. Duhart, 2011 WL 4063190, at *6).

B. Discussion

"[I]nstructions that contain errors of state law may not form the basis for federal habeas relief." Gilmore v. Taylor, 508 U.S. 333, 342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding"). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006). The court must evaluate the alleged instructional error in light of the overall charge to the jury. Middleton v. McNeil, 541 U.S. 433, 437 (2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998). "The relevant inquiry is 'whether there is a reasonable likelihood that the jury has applied the challenged instruction' in an unconstitutional manner." Houston v. Roe, 177 F.3d 901, 909 (9th Cir. 1999), cert. denied, 528 U.S. 1159 (2000) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). In challenging the failure to give an instruction, a habeas petitioner faces an "especially heavy" burden. Henderson v. Kibbe, 431 U.S. at 155.

Here, with respect to the rape charge, the trial court's instructions and the failure to give the purportedly clarifying instruction desired by Petitioner did not prejudice Petitioner. Even if, as Petitioner postulates, the given instruction effected some sympathy for Jane as the possible victim of a rape by someone other than Petitioner, any such effect was negligible in the context of the trial. Quite apart from the effect of this instruction, Jane already was a very sympathetic figure. Moreover, it is sheer speculation to suggest that sympathy for the alleged victim led jurors to disregard their instructions and to convict out of sympathy. To the extent Petitioner suggests the given instruction allowed the jury to infer Petitioner's guilt on the rape charge from the alleged fact that someone else previously supposedly had raped Jane, it is not reasonably likely that a juror would have applied the instruction in the manner suggested by Petitioner. The court instructed the jury to disregard Jane's pregnancy, and also instructed the jury on the elements of rape of a disabled person and attempted rape of a disabled person, as well as on the prosecution's burden of proof (C.T. 116, 136-38). The jury is presumed to have followed its instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000). Under these circumstances, the challenged instruction and the court's failure to give the instruction proffered by Petitioner had no substantial and injurious effect or influence on the jury's verdict.

The trial court permitted the jury to consider Jane's pregnancy with respect to the charge of dependent elder abuse. The court instructed the jury that, to prove dependent elder abuse, the prosecution was required to show that Petitioner, while Petitioner had care or custody of Jane, a dependent adult, and while Petitioner knew or reasonably should have known that Jane was a dependent adult, willfully caused or permitted Jane to be placed in a situation in which her person or health might be endangered, and that Petitioner was criminally negligent in doing so (C.T. 141). See Cal. Penal Code § 368(a)(c).*fn12 The Court of Appeal ruled that the challenged instruction properly allowed the jury to evaluate whether Jane's pregnancy lessened or increased the risk to Jane's "person or health" caused by Petitioner's conduct (see Respondent's Lodgment, pp. 13-14; People v. Duhart, 2011 WL 4063190, at *6).

The failure to give Petitioner's proposed clarifying instruction (that the pregnancy was the product of an assertedly "loving" relationship between Jane and her purported boyfriend) did not prejudice Petitioner with respect to the crime alleged in Count 2. Such crime contains no consent-related element. Petitioner argues that the instruction was misleading because the court did not explain to the jury how sex with Jane could have been dangerous (Traverse, p. 25). Petitioner's argument is unpersuasive. Without any special instruction, the jury was fully capable of evaluating the risk to "person or health" of attempting to have unprotected sex with a pregnant woman.*fn13 Moreover, any error was harmless. Given the uncontradicted evidence that Petitioner attempted to have unprotected sex with Jane, allowing the jury to consider Jane's pregnancy (while cautioning that Petitioner was not the father) did not have any substantial and injurious effect or influence on the jury's verdict. See Brecht, 507 U.S. at 637-38.

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

NO. ED CV 12-922-GHK(E)

CURTIS DUHART, ) Petitioner, v. P.L. VASQUEZ, Warden, Respondent. )

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF ) UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner, and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: ___________________________, 2012.

GEORGE H. KING CHIEF UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

NO. ED CV 12-922-GHK(E)

CURTIS DUHART, ) Petitioner, v. ) JUDGMENT P.L. VASQUEZ, Warden, )) Respondent. )

______________________________)

Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge,

IT IS ADJUDGED that the Petition is denied and dismissed with prejudice.

DATED: ___________________________, 2012.

GEORGE H. KING CHIEF UNITED STATES DISTRICT JUDGE


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