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Jose Verduzco v. Mike Minor

October 29, 2012

JOSE VERDUZCO,
PETITIONER,
v.
MIKE MINOR,
RESPONDENT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY [Doc. 13]

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States magistrate judge. Local Rule 305(b).

PROCEDURAL HISTORY

On September 23, 2008, the Fresno County District Attorney filed a juvenile wardship petition (Welf & Inst. Code § 602, subd. (a)), charging Petitioner with first degree residential burglary, assault with intent to commit rape, and sexual battery by restraint. Petitioner was sentenced to a total term of 7 years and four months imprisonment.

Petitioner filed a timely notice of appeal. On September 10, 2009, the California Court of Appeal, Fifth Appellate District reversed and stayed the 6 year term of imprisonment for the residential burglary, and affirmed the judgment in all other respects. The California Court of Appeal denied rehearing on September 23, 2009.

On November 19, 2009, the California Supreme Court denied review.

On July 25, 2011, Petitioner filed a post-conviction collateral petition in the California Supreme Court. The petition was denied on February 15, 2012.

Petitioner filed the instant petition for writ of habeas corpus on February 16, 2011. After the action was stayed pending the return to state court, Petitioner filed a first amended petition on April 26, 2012.

Respondent filed an answer to the first amended petition on September 5, 2012. Petitioner did not file a reply.

STATEMENT OF FACTS*fn1

The victim knew fifteen-year-old J.V. from school and she has done social things with him. On September 19, 2008, the victim went with J.V. and two other people to the store. On their way home, the victim returned to her house. At about 11:00 a.m., when she was home alone, doing her homework and listening to the radio in the living room, she heard a whistle outside. She looked and saw J.V. and the two other people. The victim's front door was open, but the screen door was closed. J.V. walked toward the front door and told her he wanted to talk to her. She opened the screen door slightly and tried to go outside, but J.V. "pulled himself in." She did not invite him in.

They stood right next to each other in the living room, about four feet from the front door. J.V. said, "'Let's do this, let's do this.'" The victim understood that he was referring to sex, and she refused. He said, "'Why not?'" She responded, "'[Bec]ause I already have a boyfriend.'" J.V. asked her multiple times as he stood right next to her. She said, "'No, I have a boyfriend. I am not going to cheat on him. I don't do that.'" He said, "'Well, your boyfriend is not here. He is not going to see you.'" J.V. continued to tell her, "'Let's do this.'"

The victim became annoyed and tired of J.V.'s repeated prodding, so she grabbed her cell phone. J.V. asked her what she was doing and she told him she was just checking the time. In fact, she secretly started her cell phone's two-minute recorder. She then held the cell phone under her other arm as she recorded their conversation. J.V. continued to ask her for sex. He asked her if she "wanted to bust a 69" and if she "wanted it take it from the back."

J.V. kept pushing her toward the couch and, with his final push, she lost her balance and fell onto the couch in a seated position. He sat right next to her and started rubbing her "bottom." He rubbed her breasts over her T-shirt, then he rubbed them under her bra. He said, "'Can we just do this? ... Let's just do it.'" She said, "'No, I don't want to.'" He quit touching her when she moved away and got up from the couch. He got up too, stood next to her and continued to request sex, but he did not touch her again.

The victim walked toward the front door and J.V. followed her. He was still saying, "'Let's just do this. Nobody is here.'" The victim could not see the other two people any longer; they had left. The victim set her cell phone down and told J.V. she was going to turn on the water outside, an excuse to get J.V. out of her house. He grabbed her cell phone and followed her out as she pretended to adjust the water. J.V. said he was leaving. The victim said, "'[J.V.], give me back my phone.'" He said, "'Naw, you can come and get it.'" She repeatedly demanded that he give her the phone and he repeatedly refused and told her to come and get it. He said she would have to follow him to get it back, and he walked out of the gate.

The victim felt she could not follow J.V. because she was alone and her house key was in her room. But she was afraid he would run away with her cell phone. She stayed at the gate and pretended to lock it. She got the regular telephone from inside her house and she called her boyfriend. She could still see J.V. walking away. She asked her boyfriend to call her cell phone. When her cell phone started to ring, J.V. teased her saying, "'Do you want your phone?'" she cussed at him and told him to give it to her. He told her to come and get it. She ran after him, but he walked faster. Finally, about 10 houses down the street from her house, J.V. left the cell phone on the ground, told her to go get it, and he walked away.

The victim grabbed her cell phone and went back to her house. She locked all the doors. She was crying. She took a shower, but she "still felt like he was rubbing on [her], touching [her]," so she took another shower. She kept quiet because she was scared.

A few hours later, she confided in her neighbor, and the neighbor told her to call the police. The victim did not want to be known as a snitch, but she was really scared. She thought telling her parents was the worst thing because she was also scared of them. She called the police later that afternoon.

Defense Evidence

J.V. testified that he knew the victim through school and friends. On September 19, 2008, he talked to the victim at school. She told him she was going to be home alone later, and he could come by. After school, J.V. went to see his friend, B., and they watched television. J.V., B., and B.'s girlfriend decided to go to the liquor store. On their way, they stopped by the victim's house and B. whistled. The victim came out of the house and B. asked her if she wanted to go with them. They all went to the store and the victim bought something for them. They walked back and the victim went into her house. She told them they could come back and smoke at her house. J.V., B., and B.'s girlfriend stopped by someone's house, but found no marijuana to buy, so they went back to B.'s house.

J.V. and B. got tired of watching television. At that time, J.V., B., B.'s girlfriend and another friend, C., went back to the victim's house. B. whistled for the victim again as they waited outside her front gate. When she came out and told them to come in, they all entered the yard and went inside the house because "[i]t was allowed for them to walk in." The victim did not open the door for J.V.; the door was already open and she was seated on the couch. They all sat down. The victim sat in a rocking chair. J.V. was talking to B. and the victim was talking to C. The victim asked J.V. to go to the back room. He said, "[N]o why, when we can just sit here and talk[?]" The victim asked him again and again until he "finally got tired of it and just got up and went back there [to a room]." While they were in the room, "[e]verybody else was just sitting down in the living room, I guess, talking."

J.V. asked the victim if she was sure that she wanted to have sex because he did not want to get into trouble. She said she was sure. J.V. felt "kind of awkward," but they proceeded to have sex. The victim took off her clothes and J.V. unbuttoned his pants. They had intercourse for at least five minutes. J.V. did not hold any part of the victim's body; he was holding himself up. "[B]ut then in [J.V.'s] head [he] felt like this was a setup, well, who asks you to come over just like-and starts bugging you to go to a back room. So [J.V.] stopped, []buttoned his pants, and just left the room." He looked at the victim and "you can see the look in her eyes, like-the look in her eyes, like she was getting mad or something like that." J.V. "just told her that [he] didn't feel right being [there] and that [he] got to go." "[He] just walked out. [He] didn't even look, bother looking back. [He] just walked out, told [his] friend [B. he had] to go, [he didn't ] want to be [there] no more." J.V.'s friends did not get up, so J.V. left the house himself. B. came after him and grabbed his hand. B. said, "'Where are we going? '" J.V. told him, "'We got to go because I feel like this is a setup.'" He said he did not feel right being there. B. said "'[A]ll right,'" and he told the others to get up and go.

On cross-examination, J.V. testified that from what he had heard, the victim did not have a boyfriend, and she did not tell him that she did. J.V. first became suspicious of a setup when he was walking down the hall with the victim to the back room, but even though he was suspicious, he entered the dark room, put on a condom he had in his pocket, and had sex with the victim for about 5 minutes. During those five minutes, he kept thinking that this could be a setup.

J.V. never had the victim's cell phone and he never teased her by taking it away.

On redirect, J.V. explained that he had sex with the victim despite his suspicions because he did not want his friends to think he was scared. Rebuttal Evidence

The victim testified that no one other than J.V. was in her house that day, and C. was not present at all. The victim denied ever asking J.V. to have sex with her. She said he had never been in any bedroom in her house and she had never had sex with him.

(Ex. A, to Answer, People v. J.V., No. F056619, 2009 Cal.App. Unpub. LEXIS 7301 (Cal. App. Sept. 10, ...


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