United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DENY FIRST AMENDED PETITION FOR WRIT OF HABEAS
CORPUS (Doc. 37) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN 21 DAYS
JENNIFER L. THURSTON, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is in custody of the California Department of Corrections and Rehabilitation serving a determinate sentence of 12 years pursuant to a judgment of the Superior Court of California, County of Tulare (the "Superior Court") for his 2007 conviction following a jury trial of four counts of forcible oral copulation.
Petitioner filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the "5th DCA"), which affirmed Petitioner's conviction on November 26, 2008. (Lodged Documents ("LD") 4, Ex. A). Petitioner filed a petition for review in the California Supreme Court that was summarily denied it. (LD 6). After that Petitioner filed a state habeas petition in the California Supreme Court, which was denied with a citation to In re Dixon , 41 Cal.2d 756, 759 (1953). (LD 7).
On January 25, 2010, Petitioner filed the instant petition. (Doc. 1). Following a stay of proceedings, Petitioner filed a first amended petition on January 20, 2012 (Doc. 37), to which Respondent filed an answer (Doc. 44). On June 6, 2012, Petitioner filed his Traverse. (Doc. 48).
Respondent alleges Ground Two may be unexhausted, depending upon the Court's construction of the claim, and that Grounds Three and Four are procedurally defaulted. (Doc. 44, p. 9).
The Court adopts the Statement of Facts in the 5th DCA's unpublished decision:
J.S.'s mother married Lopez when J.S. was approximately nine years old. Lopez began molesting J.S. when she was a sophomore in high school. J.S. was molested approximately 30 times between 2002 and 2004 at her house and while she and Lopez stayed in motels during softball tournaments.
At first, Lopez began entering the bathroom for no apparent reason while J.S. was showering. A few weeks later, Lopez was in J.S.'s bedroom when he called her into the bedroom. Lopez was lying on the bed and told J.S. to sit next to him. Lopez began rubbing J.S.'s arms and legs while talking to her. Lopez took off his pants and placed J.S.'s hand on his penis and forced her to masturbate him until he ejaculated. Lopez became more affectionate towards J.S. after these incidents.
J.S. did not know why she was being molested by Lopez. She did not tell anyone because she was scared and embarrassed. In the past, Lopez had hit her and grabbed her so hard on the arms that he left bruises. Whenever her mother asked about the bruises, J.S. told her they were from playing softball.
On one occasion Lopez took J.S. into his bedroom and made her remove her pants. Lopez put J.S. on the bed, held her legs, and orally copulated her. Lopez told her to keep her mouth shut, and J.S. complied. J.S. weighed about 110 pounds at the time and, although she was strong, Lopez could overpower her.
On another occasion J.S. followed Lopez into his bedroom to ask a question. Lopez threw her down on the bed, lay next to her and began rubbing her back. Lopez took off his pants and made J.S. remove her shirt. Lopez rubbed J.S.'s breasts and then he grabbed her hair and forced her to orally copulate him. J.S. vomited on the floor. J.S. slipped and fell on her vomit as she tried to leave after Lopez ejaculated. Lopez told J.S. to stop crying and to clean up the mess she had made on the floor. J.S. kept crying and did not know what to do. J.S. did not call anyone and report the molestation because she was afraid she would get into trouble.
J.S., who excelled at softball, played on a traveling softball team while in high school. Lopez always would accompany her on trips, while her mother and sister also came along occasionally. Lopez and J.S. often would not stay at the same motel as other members of the team to save money. On one occasion, after a softball game, Lopez again forced J.S. to orally copulate him. On another occasion, Lopez told J.S. to get his pills while they were staying in a motel room for a softball tournament. Lopez was referring to his Viagra pills. Lopez took a pill and later forced J.S. to orally copulate him again.
The molestations occurred more frequently while at home. The other incidents were the same type of conduct and occurred either in her bedroom or in her parents' bedroom. No one saw any of the molestations.
J.S. had to ask Lopez for permission to do everything, including taking a shower or eating. If she did not ask permission, Lopez would yell at her or ground her. J.S.'s mother was working most of the time. Lopez was "always at home." J.S. was required to be home shortly after school. If she was late, Lopez would yell at her. Lopez also retained the right to approve any clothes purchases J.S. wanted to make and occasionally would pick out clothes for her.
Lopez attended all of J.S.'s softball practices and all of her games. He would yell at her during practice. On some occasions the comments would be designed to improve her game, and on other occasions J.S. felt as if Lopez was just being mean.
Lopez would not allow J.S. to date while she was in high school. She had a boyfriend while in high school named J.J. She first met J.J. when she was in the seventh grade and he was a freshman or sophomore in high school. J.J. was approximately two and one-half years older than J.S. She met him through his sister, with whom she played softball. Lopez knew that J.S. hung out with J.J., but forbade her from kissing J.J. When Lopez found out she had kissed J.J., he forbade her from seeing J.J. anymore. J.J. wrote a letter to her parents insisting he be allowed to continue seeing her. After the letter, her mother also forbade her from seeing J.J.
When J.S. started high school, she started seeing J.J. again. Neither Lopez nor J.S.'s mother knew that she was seeing him. She asked her friends not to tell Lopez she was seeing J.J.
Various colleges recruited J.S. to play softball. One was Mount Marty College in South Dakota. J.S. met with the coach, Clint Frederiksen. She told Frederiksen that she had a boyfriend and asked him not to tell her parents because she was not supposed to have one. J.J. was planning to move to South Dakota to be with her. J.S. asked Frederiksen if there were any schools nearby that were affordable for J.J. Frederiksen provided her with some information on other nearby colleges.
Problems developed when Frederiksen told J.S. her social security number and other information was not correct on some of the admission forms she submitted to the university. Eventually, Frederiksen lost interest in recruiting her and stopped responding to her e-mails.
On May 27, 2004, J.S. was at school when she received a phone call from Lopez. Lopez was upset. He said he had received a letter from Frederiksen stating that she was dating J.J. Lopez told her she had to come home immediately because she was in trouble. Lopez called her a whore. She called her mother, L.L., and told her she had been dating J.J. and Lopez was angry at her because he had learned of her relationship with J.J. She said she did not want to go home because she was scared. L.L. told her to stay at school until she (L.L.) could get home.
When J.S. arrived at home, L.L. and Lopez were present. Lopez started yelling at her, calling her a whore and stating she broke his rule because she was not supposed to be dating. Lopez told her she was not going to be able to live in the house anymore. L.L. said she did not have to move out. In the midst of this argument, J.S. told L.L. that Lopez had been making her do things she did not want to do. She exposed Lopez because he kept yelling that what she was doing was wrong, and she knew that what Lopez had been doing to her was wrong.
L.L. started crying and told Lopez he would have to leave. Lopez packed his bags and, as he was leaving, asked that he not be arrested until after J.S. graduated. He also stated that it was not J.S.'s fault. Lopez called his father to pick him up.
L.L. took J.S.'s cell phone after Lopez left. J.S. did not use that cell phone again. After Lopez left, J.S. and her mother spoke. The two then went to the police station. Lopez and his father were at the police station when J.S. and L.L. arrived.
L.L. testified that she met Lopez at the business at which they both worked. They married in 1996. Initially, they had a good relationship. After Lopez stopped working because of various illnesses and disabilities, however, L.L. became the sole source of income for the family and had to work a lot of hours. The relationship started to become more difficult. Occasionally they were intimate, and Lopez would sometimes take a Viagra pill before they had intercourse. Lopez was able to achieve an erection.
J.S. and Lopez initially had a good relationship. Lopez started treating her differently around her sophomore year in high school. It appeared that Lopez did not want her talking to anyone. J.S. denied anything was happening between Lopez and her when L.L. asked. L.L. inquired because it appeared to her from comments that were made and looks Lopez would direct at J.S. that there might be something happening between the two. It appeared to L.L. that Lopez was totally focused on J.S. L.L. was suspicious that something might be going on, but both Lopez and J.S. denied it.
One morning, L.L. observed Lopez lying next to J.S. in her bed. J.S. appeared to be asleep, and Lopez was rubbing her back. L.L. yelled at Lopez, who explained that was how he woke J.S. in the mornings. L.L. told Lopez to stop such behavior.
L.L. also found Lopez's Viagra medication in his traveling bag when he returned from one of J.S.'s softball tournaments. When J.S. or L.L. suggested that J.S. go to a tournament without Lopez, he responded that her softball was all he had left (referring to his various illnesses and disabilities).
J.S. was not prohibited from dating in high school, but L.L. preferred that she did not so that she could focus on her education. L.L. did not recall hearing Lopez tell J.S. she could not have a boyfriend. L.L. would not have been upset if J.S. had a boyfriend in high school. She did not know that J.S. was seeing J.J. while in high school.
On May 27, 2004, L.L. was at work when she received a phone call from J.S., who was very upset, almost hysterical. She stated that Lopez learned she was dating J.J., and she was afraid Lopez would hurt her. L.L. told J.S. not to worry about it, and they would discuss it when she got home. She told J.S. not to go home and that she would be home in a little while. A short while later L.L. received a phone call from Lopez. Lopez was "ranting and raving, " calling J.J. a "fucker, " "faggot, " and "asshole, " and calling J.S. a "whore." Lopez stated that J.S. would have to move out of the house. Lopez did not say anything about J.S.'s scholarship to Mount Marty.
The two phone calls caused L.L. to be alarmed. J.S. was not at home when L.L. arrived. Lopez was pacing and continued to rant and rave, calling J.S. and J.J. names. He was very angry because J.S. was dating J.J.
When J.S. arrived a short while later, Lopez began questioning her about J.J. and continued calling both of them names. Lopez ordered her out of the house. L.L. did not understand why Lopez was so angry and was trying to discover the cause of the anger.
L.L. did tell J.S. that if she was going to continue to lie, then it would be better if she moved out when she turned 18. L.L. did not say, however, that J.S. had to leave the house immediately.
At this time J.S. stood up and said that Lopez should tell L.L. what he had been doing. L.L. did not know to what J.S. was referring, so she told her to just say it. J.S. stated that Lopez had been forcing her to do sexual things. Lopez sort of laughed. L.L. told him to leave, and Lopez got up and walked to the back of the house.
L.L. was in shock. J.S. was sitting on the couch crying. Lopez packed his clothes. Before he left, Lopez came into the living room and told L.L., "Don't blame [J.S.], it's not her fault." L.L. told Lopez she was going to have him arrested. Lopez asked her to wait until after J.S. graduated from high school. L.L. refused the request. Lopez never denied the allegation made by J.S.
Lopez gave L.L. his cell phone before he left. Lopez's father and J.S. also had cell phones. L.L. asked J.S. for her cell phone after Lopez left because she did not want Lopez calling her. L.L. put the cell phone in her purse and then took J.S. to the police station, along with her youngest daughter. L.L. did not return the cell phone to J.S., nor did she allow J.S. to take a cell phone out of her purse.
Lopez was already at the police station when L.L. and J.S. arrived. L.L. was uncomfortable sitting in the same area as Lopez, so she asked if she could sit somewhere else. While they were waiting, the only time L.L. left J.S. was when the interviewing officer asked her to leave for a short while.
L.L. received a letter from J.J. when he and J.S. first started seeing each other. The letter was very nasty and asserted that he and J.S. could do whatever they chose. The letter also called L.L. names. As a result, L.L. did not care for J.J.
J.S.'s high school softball coach for her sophomore, junior and senior seasons, Lance Wallace, confirmed that Lopez was "pretty tough" on her, and that he was the only parent who attended almost every practice and game. Her high school softball coach during her freshman year, Stacy Hanson, confirmed that Lopez was at every practice and would interfere with the team. She eventually closed the practices to parents because of Lopez. Lopez would still attend practices, but observed from a distance.
J.J. confirmed that he and J.S. had a boyfriend/girlfriend relationship before she entered high school, which resumed when she was approximately a junior in high school. The two kept their relationship secret from J.S.'s parents when she was in high school because they would not approve of the relationship. He described Lopez as very hard on J.S. during softball games and practices. J.S. stated she was afraid of Lopez.
J.S. did not tell J.J. that Lopez was molesting her until after she graduated from high school. She was crying hysterically when she disclosed the molestations. J.J. also thought that J.S. was an accomplished liar because of the need to keep her relationship with him secret.
Anthony Urquiza, Ph.D., is a psychologist and professor at the UC Davis Medical Center in Sacramento. His testimony was limited to explaining the Child Sexual Abuse Accommodation Syndrome which describes characteristics common to children who have been abused sexually. The syndrome consists of five parts: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed and unconvincing disclosure, and (5) retraction.
Lopez presented numerous witnesses in his defense. Luis Velosa, M.D., is a psychiatrist who treats patients and testifies as an expert witness. Lopez has been his patient since 2001. Lopez initially was suffering from severe depression and had a medical diagnosis that included fibromyalgia and diabetes. After about a year of treatment, Velosa concluded that Lopez was bipolar and adjusted his medications. Lopez began improving slowly. Lopez reported having problems with his sexual drive. Some of the medications Lopez was taking could cause impairment of his sexual needs.
Andrea Espinosa, M.D., began treating Lopez at the end of December 2003. His diagnosis included diabetes, peripheral neuropathy, hypertension, and fibromyalgia. He was taking medication for each of these conditions. Each of his conditions, as well as the medications, might cause sexual dysfunction.
Lee Coleman is a medical doctor specializing in adult and child psychiatry. Coleman testified that the Child Sexual Abuse Accommodation Syndrome is useless in attempting to determine whether or not someone has been abused sexually. He admitted that the various factors suggested by the theory could exist in a child that had been abused, but they could also exist if a child had not been abused. Coleman also criticized the interviewing techniques of the investigating officers, essentially opining that the officers were incompetent.
Frederiksen, who in 2004 was the softball coach at Mount Marty College in South Dakota, testified that he offered J.S. a softball scholarship to Mount Marty, but eventually rescinded the offer. He did this because J.S. told him she had a boyfriend and asked him not to tell her parents of this fact, and because she had provided him with an incorrect social security number. This was the only time Frederiksen ever withdrew a scholarship offer.
Lopez testified in his own defense. He described the diseases with which he had been diagnosed. He stated that in 2002 he developed a condition that ultimately required a circumcision. In the year prior to the operation, there were times he was not able to obtain an erection because of the pain. The operation was performed on August 16, 2002. Lopez was instructed to refrain from any sexual activities for two months after the operation.
Lopez stated his relationship with L.L. was not very good in the time period from 2001-2003 because he could not achieve an erection on a regular basis. It got to the point that Lopez was not able to achieve an erection without using Viagra. Lopez claimed that even with Viagra, he was able to achieve an erection only one out of every five attempts.
He described himself as a loving and caring father and husband, considering his physical disabilities. He denied that J.S. was afraid of him. He claimed the incident when L.L. saw him waking J.S. in the morning occurred when J.S. grabbed him around the neck after he woke her and he fell onto the bed. He denied that L.L. ever spoke to him about the way he looked at J.S. He also denied telling J.S. that she could not date in high school. According to Lopez, J.S. had a lot of freedom, as long as her homework was done.
He admitted that when he learned that J.S. was not going to Mount Marty College, he became upset, but he denied that he screamed, ranted, raved, or swore. He claimed he told J.S. to come home because he had found out she had rejected her last scholarship offer, and he had learned she had been dating J.J. He also admitted calling L.L. and asking her to come home right after work to resolve this matter. When both parties arrived, Lopez testified they calmly discussed the situation. He also claimed that he told J.S. that if she was going to continue to lie, she should move out when she turned 18.
J.S. was the one who was being emotional and confrontational during this discussion. After both Lopez and L.L. told her she could move out when she turned 18, J.S. got up and said she was going to tell L.L. what she and Lopez had been doing together. Lopez was shocked and told J.S. to say whatever she had to say because he had no idea to what she was referring. J.S. said something to the effect that Lopez had been making her lick him. L.L.'s only comment was "Bye." He stated it was not a good time for him to try and speak with L.L. because she appeared to be very angry.
Lopez did not say anything to J.S. because he was trying to understand why she would lie about him like that. J.S. began crying and then made a comment about it being her fault. L.L. began yelling at her, so J.S. just got quiet. L.L. told J.S. that it was not her fault. Lopez told L.L. to leave J.S. alone.
Lopez was very sad because he could not understand why J.S. would make up lies about him. He denied ever touching J.S. in a sexual way. Lopez concluded that J.S. made the accusation because she was backed into a corner and accusing Lopez of ...