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Rubicel Aguilar Perez v. Wasco State Prison

January 29, 2013


The opinion of the court was delivered by: Sheri Pym United States Magistrate Judge



On June 25, 2012, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition"), challenging a 2010 conviction and sentence in Orange County Superior Court. Petitioner was convicted of lewd and lascivious act against a child, attempted forcible rape, and assault with intent to commit a sexual offense, for which petitioner was sentenced to twenty-one years to life in prison.

In his Petition, petitioner raises a single ground of relief -- that his trial counsel was ineffective for not objecting to the prosecutor's improper questioning of petitioner in three respects during cross-examination, which inflamed the jury and deprived petitioner of a fair trial.

On October 2, 2012, respondent filed an Answer to the Petition ("Answer"), with a Memorandum of Points and Authorities in Support of the Answer. Petitioner did not file a reply to the Answer.

Both petitioner and respondent consented to proceed for all purposes before the Magistrate Judge pursuant to 28 U.S.C. § 636(c). With the parties' briefing complete, the matter is now ready for decision.

After carefully considering the parties' submissions and the applicable law, the court finds that petitioner is not entitled to habeas relief, for two reasons. First, in two of the portions of the cross-examination where petitioner contends his counsel was ineffective for failing to object, his counsel did in fact object. And second, because this court finds the California courts did not unreasonably apply federal law or unreasonably determine the facts in rejecting petitioner's claims of prosecutorial misconduct and ineffective assistance of counsel, petitioner suffered no prejudice and therefore did not receive ineffective assistance of counsel. Accordingly, the Petition will be denied.



A. Count 1 -- Lewd and Lascivious Conduct Against a Child

In September 2008, an obstetrician confirmed that Y., then 12 years old, was 24 weeks pregnant. Y. claimed she had not engaged in sexual intercourse with anyone, and did not know how she could have become pregnant. At the time Y. likely became pregnant, she, her parents ([petitioner] and J.T.), and two younger siblings, were living in one bedroom of a house in Santa Ana. Y. and a younger sibling shared one bed, while [petitioner], J.T., and the other younger sibling shared the other bed. Eight other families lived in the same house.

When [petitioner] learned Y. was pregnant, he cried and asked what had happened and who had done it. At a meeting among [petitioner], J.T., Y., and the principal and the nurse of Y.'s school, [petitioner] said he did not know who got Y. pregnant and he and J.T. never let Y. out of their sight. [Petitioner] also said Y. might have become pregnant from a toilet seat.

During the time it is likely that Y. became pregnant, J.T. was a stay-at-home mother. [Petitioner] worked six days a week, leaving for work at 9:00 a.m. and returning at 10:00 p.m., with Wednesdays off. Y. left for school at 7:00 a.m. and returned at 2:00 p.m., and was generally in bed by 9:00 p.m. Y. went to her aunt's house every day after school. Y. said she was never alone with [petitioner] on his days off, and she could not remember any time she had been alone with him. J.T. had never witnessed any inappropriate conduct between [petitioner] and Y.

DNA samples were obtained from [petitioner], an uncle, a cousin, and an unrelated male friend. DNA testing after Y.'s baby was born excluded all samples except for [petitioner]'s sample. An expert witness for the prosecution testified that [petitioner] was 200,000 times more likely than a randomly selected male to be the father of Y.'s baby.

B. Counts 2 and 3 -- Attempted Rape and Assault with Intent to Commit a Sexual Offense C.A. was married to J.T.'s brother. [Petitioner] and his family were renting a room from C.A.'s family in 2007. In September 2007, after taking a shower, C.A., wearing only a towel, entered her bedroom. [Petitioner] was in C.A.'s bedroom; the zipper of his pants was down, and he told her he wanted to have sex with her. When C.A. refused, [petitioner] grabbed her by the shoulders and pushed her down on the bed; they began to fight. [Petitioner] grabbed C.A.'s wrists and told her nobody would find out. C.A. got one hand free, grabbed the telephone, and hit [petitioner] on the head. [Petitioner] then released her. C.A. told [petitioner] she was going to call her husband and the police.

[Petitioner] went back to his own room, and C.A. dressed and went to her sister's house. C.A. showed her sister the marks on her hands, and told her what had happened. When C.A. returned home, she told J.T. that [petitioner] had grabbed her, thrown her on the bed, and tried to rape her. That evening, C.A. confronted [petitioner] in front of C.A.'s husband and J.T., but [petitioner] denied having attacked C.A. C.A.'s ...

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