FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2008 judgment of conviction entered against him in the San Joaquin County Superior Court on charges of aggravated kidnapping, rape, forcible oral copulation, forcible sexual penetration by a foreign object, and assault with the intent to commit rape. He seeks relief on the grounds that: (1) the evidence was insufficient to support his conviction for aggravated kidnapping and the true findings on the movement and kidnapping sentence enhancements; (2) the trial court violated his federal constitutional rights by excluding evidence of the victim's prior sexual conduct; (3) the trial court violated his federal constitutional rights when it excluded the victim's postings on a social media site; (4) his due process rights were violated by jury instruction error; and (5) the trial court committed sentencing error. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
A jury convicted defendant Ricardo Herrera Rangel of aggravated kidnapping (Pen.Code, § 209, subd. (b)(1)),*fn2 rape (§ 261, subd. (a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)), and assault with the intent to commit rape (§ 220). The jury also determined as enhancements that defendant, in order to commit rape and penetration by a foreign object, moved the victim in a manner which substantially increased the risk of harm (§ 667.61, subd.(d)(2)), and that defendant kidnapped the victim for the purpose of committing rape, oral copulation, and penetration by a foreign object. (§ 667.8, subd. (a).) The jury acquitted defendant of one count of attempted robbery (§§ 664, 211), and found not true an allegation that defendant moved the victim for the purpose of committing oral copulation.
The trial court sentenced defendant to a state prison term in the aggregate of 68 years to life, calculated as follows: the middle term of six years for the rape plus 25 years to life for the associated movement enhancement; the middle term of six years for the oral copulation conviction; and the middle term of six years on the foreign object penetration conviction plus 25 years to life for the associated movement enhancement.
Pursuant to section 654, the trial court stayed the following prison terms: a term of life with the possibility of parole for the aggravated kidnapping conviction; a four-year term on the assault conviction; and three separate nine-year terms for the kidnapping enhancements.*fn3
19-year-old Mallory Doe was walking to work along South Main Street in Manteca about 7:00 a.m. on a cold December morning when she heard someone running up from behind her. Immediately someone wrapped their arms around her neck. Mallory tried to scream, but her assailant punched her in the lower lip of her mouth. The assailant, a male, told her not to say anything or else she would be hurt more.
The assailant put Mallory into a headlock and pulled her into an alley off the main road and behind a Social Security Administration building. He forced Mallory to stand in front of him in a dirt area with her back towards him and facing a brick wall and some bushes. He said if Mallory would keep quiet, "this would benefit" her.
The assailant stuck his right hand underneath Mallory's skirt, nylons, and underwear, and he inserted his fingers inside her vagina. As he did this, he asked Mallory how old she was and if she had a boyfriend. Mallory replied she was 19 years old and she had a boyfriend.
The assailant asked Mallory if she "liked to fuck." Mallory said she did not because she was undergoing treatment for the early stages of cervical cancer, and if the assailant did anything to her it would hurt. He told her to quit whining or else he would hurt her more.
Mallory then heard the assailant unzip his pants. He was still standing behind her with one hand around her neck so she could not move. He told her to take her left hand and rub his penis to get it hard. She did so. He told her if she hurt him, it would make things worse. He also said she had to get him hard or else she would have to give him "head" (oral copulation).
Mallory told the assailant she did not want to rub his penis. He told her to spit in her hand and keep rubbing. She continued to rub his penis, and then he told her she would have to orally copulate him for four minutes. When Mallory protested, he dropped the time to three minutes. She told him she did not want to do it, and he reduced the time to 30 seconds.
The assailant told Mallory to turn around. Before she could completely turn towards him, he pulled the collar of his jacket up to cover his mouth and part of his nose. Mallory could discern the assailant was a Hispanic or Latino male, about five feet 10 inches tall, with short black hair, buzzed on the sides but longer in the middle, and slicked back. He wore a dark-colored nylon track jacket, dark-colored pants, a belt, and light-colored sneakers.
Mallory did not know the assailant and had never seen or met him in her life.
The assailant told Mallory to get down, and that she had better not hurt him or he would make things worse. Mallory kneeled down, and the assailant put his penis in her mouth. He kept a hand on the back of Mallory's head so she could not pull away. Mallory orally copulated him for about a minute until he told her to stop.
The assailant told Mallory to stand up. She did and turned back to face the wall. He asked her if she liked it "doggy style," and she said no. He stuck his hand down her skirt again and put his fingers inside her vagina. Then he put his hand underneath her shirt and bra and fondled her breast.
He then pulled down Mallory's skirt, nylons and underwear to her thighs, put his hand between Mallory's legs, and told Mallory to spread them. Mallory was scared, so she complied. The assailant pushed his pelvis into Mallory and attempted to insert his penis into her vagina. He inserted his penis part way, kept pushing for a little while, and then withdrew. Mallory was not sure if he ejaculated. Mallory asked if she could pull her skirt up, and he agreed.
The assailant asked Mallory if she had any money. She said she did not. The assailant said she had better not be lying. To prove she was not, Mallory said she would reach into her purse, grab her wallet, and show him she did not have any money. She did so, and then put the wallet back into her purse.
The assailant told Mallory to turn to the left. She did, and she heard him run away. She counted for 20 seconds, and then looked over to see if he was gone. She turned around, ran to the side of the Social Security office, and saw a woman there using her cell phone. Mallory told the woman she had just been raped. The woman, Lupita Torres, a Social Security Administration employee, called police. Torres testified that Mallory was crying, nervous, and "completely distraught." Torres also testified that a light in the alley was not working that morning, and the alley was dark.
Mallory gave police a description of her assailant. The description was broadcast to other patrol units in the area. Moments later, Manteca Police Officer Robert Armosino located a person matching the description of Mallory's assailant about one-half mile from the crime scene. The suspect was defendant. He was wearing a black sleeveless shirt with no jacket even though it was only 40 degrees outside.
Police transported Mallory to where defendant was being held. Mallory identified defendant as her assailant. Although he was not wearing a jacket, he had the same looking pants and shoes, and his hair matched what she had seen. Defendant was arrested.
Police recovered a black jacket hanging on the side of a dumpster about two blocks from where defendant was detained. When given the jacket, Officer Armosino noticed the jacket smelled of the same cologne that he had smelled on defendant and that was in a bottle of cologne he had found on defendant's possession.
At the crime scene, police noticed some shoe impressions in the area where Mallory had said the attack occurred. Manteca Police Officer Matthew Simpson visually compared the impressions with defendant's shoes. The impressions appeared to be the same pattern as those on the bottom of defendant's shoes. After examining a cast of the shoe impressions with defendant's shoes, a Department of Justice criminalist later concluded she could not exclude the possibility that the impressions at the crime scene were made by defendant's left shoe.
Mallory had told Manteca Police Detective Steve Beerman the distance defendant had moved her from the sidewalk to the alley behind the Social Security Administration building was a couple of feet. She testified at trial that she was moved approximately 10 feet. Investigating officers, however, determined the distance from the sidewalk to the crime scene where the shoe impressions were found was at least 53 feet.
Investigating police at the scene observed surveillance cameras mounted on the Social Security Administration building. One was on the back of the building facing the alley, and another was on the side of the building. However, no images of the assault were captured by the cameras on videotape.
A medical examination of Mallory disclosed a three-millimeter long mucosal tear of Mallory's posterior fourchette, i.e., "the rear most portion of the outer portion of the vagina." The examining physician, Dr. Douglas DeMartinis, stated the tear implied that some degree of force was applied to that particular area of the body. In Dr. DeMartinis's experience, the posterior fourchette was a common area to see injuries in women who had been sexually assaulted. He also agreed it was possible for a woman to have such a tear after consensual sexual intercourse, but he would not expect to see one after consensual intercourse.
Dr. DeMartinis did not notice any injuries to Mallory's mouth. However, prior to Dr. DeMartinis's examination, Detective Beerman had noticed the lower left side of Mallory's lip was swollen. Detective Beerman photographed the injury.
DNA analysis was performed on samples taken from both Mallory and defendant. Semen found on Mallory's underwear and on her vaginal swabs matched defendant's DNA profile. DNA from defendant's penile swab matched Mallory's DNA profile. Mallory's boyfriend was eliminated as a possible donor of the semen found on Mallory's underwear and vaginal swabs.
On the same day as the assault, Detective Beerman interviewed defendant at the police station. Defendant initially claimed he had been out that morning looking for his girlfriend's lost necklace when the police stopped him. He denied going to the shopping center where the Social Security Administration office was located. He also claimed he did not know, and had never met, the victim.
Later in the interview, defendant changed his story. He said he was very angry with his girlfriend that morning when he crossed paths with the victim. He grabbed the victim from behind with his arm around her neck, told her he was not going to hurt her, and moved her off the sidewalk a couple of yards. Defendant did not remember anything that happened after he moved the victim. He denied using drugs that day or the day before. He did not know the victim's name.
During the interview, defendant denied wearing a jacket that morning. However, when he was shown the jacket that was recovered from the dumpster near the crime scene, defendant admitted the jacket was his. He claimed he had not seen it since the night before.
During the interview, defendant wrote a letter of apology to Mallory. The letter stated: "I know that I'm the last person you want to hear from right now, but from the bottom of my heart I am so very sorry for everything that I put you through. This was the last thing on my mind that I would have ever done to anybody. You don't deserve this, and I honestly hope the best for you. I'm sorry. [¶] I messed up your X-Mas and now I messed up mine, and I will not be able to see my child who I haven't seen in a while. That breaks my heart. I know I deserve everything or charge you have against me. I just wanted to apologize to you for everything. I'm sorry. [¶] Wish you the best. You deserve it. Ricardo Rangel."
Defendant's defense at trial was consent. His testimony contradicted much of what he had told Detective Beerman. Defendant testified he had known Mallory for about a month and a half. He claimed he and Mallory were together the night before the alleged attack and arranged to meet the next morning before she started work. Mallory asked defendant to bring some methamphetamine with him. She would pay him $10 for it.
The next day, they met in front of the house directly north of the Social Security Administration building. Because people were walking on the sidewalk, they went into a nearby alley. He did not grab Mallory or forcibly move her into the alley. Defendant noticed a bump on Mallory's lip, and they talked about it. Then they began consensually engaging in sexual acts with each other. Defendant tried to have intercourse with Mallory, but he could not get an erection because he was on drugs. He did not believe he ever ejaculated.
While defendant was trying to have sex with Mallory, she recognized someone passing by, so they stopped. Defendant gave Mallory the methamphetamine and Mallory gave him $10. Defendant placed the money in his jacket pocket and left. He discarded the jacket on the side of a dumpster because it was old and torn, and because he was afraid his girlfriend would smell another woman's scent on the jacket.
Defendant denied speaking truthfully with Detective Beerman. He lied because the police refused to let him make a phone call or have a drink of water. He did not mention having consensual sex with Mallory to Detective Beerman because he was trying to protect her. She was a nice person, and he feared her boyfriend would beat her up for what they did. He also expected Mallory at some point to come forward and tell the truth.
Resp't's Lodg. Doc. 1 (Opinion) at 1-11.
A. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn4
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner ...