United States District Court, E.D. California
ORDER DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. 13)ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE FILE ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
JENNIFER L. THURSTON, Magistrate Judge.
In his petition for writ of habeas corpus, Petitioner claims a number of errors occurred that justify the Court granting his petition. In particular, he claims that the trial court erred in giving the jury instructions, that he was sentenced improperly and that he received the ineffective assistance of counsel in the trial court and on appeal. Because Petitioner has failed to demonstrate his entitlement to relief, the Court DENIES the petition.
Petitioner is in custody of the California Department of Corrections and Rehabilitation after his conviction in the Kern County Superior Court of seven counts of committing lewd and lascivious acts with a child under the age of 14. (Cal. Pen. Code § 288(a). (Clerk's Transcript on Appeal ("CT"), page 294). Petitioner was sentenced to a determinate prison term of 16 years. (CT 294).
Petitioner filed a direct appeal to the California Court of Appeals, Fifth Appellate District and raised only whether the trial court erroneously instructed the jury. The 5th DCA affirmed Petitioner's conviction. (Doc. 18, Ex. A). Petitioner's petition for review in the California Supreme Court, was also denied. (Lodged Document ("LD") 13). Also, Petitioner's state habeas petition filed in the California Supreme Court was summarily denied. (LD15)
The Court adopts the Statement of Facts in the 5th DCA's unpublished decision: L., who was 16 years old at the time of trial, began living with appellant when she was five years old. When L. was eight, she was adopted by appellant and his wife, Mrs. Griffin, and lived with them in a household that included L.'s brother and sister.
After appellant adopted L., his relationship with her changed, and he began touching her in a manner that made her uncomfortable. L. estimated that this type of uncomfortable touching occurred more than 30 times. The first time, when L. was eight, appellant called her into the back bedroom of the house and directed her to touch his penis. She complied, but did not tell Mrs. Griffin because she was "afraid."
The second incident, also when L. was eight, occurred while she was sitting on the couch with a pillow on her lap watching television. Appellant was sitting next to her and her sister was on the other side of her. Appellant used his hand to touch L.'s vagina over her clothing.
When L. was 12 years old, appellant called her into the back bedroom and told her to touch his penis. She complied. Appellant touched L.'s leg with one hand and placed his hand on his penis and moved it up and down. Mrs. Griffin walked in while this was going on and threatened to call child protective services. She "kicked" appellant and L. out of the house. The next day, appellant and L. moved into a motor home.
While appellant and L. lived in the motor home, appellant told L. to remove her clothing and lie on the bed. He then directed her to open her legs. Appellant lay on top of her naked for approximately one hour. Appellant repeated this behavior more than three times while L. was under the age of 14. On one occasion, appellant lay on top of her and rubbed his penis against her vagina. While they lived in the motor home, appellant put his mouth on her vagina, and on another occasion, he told her to orally copulate him. Appellant also touched L.'s breasts while they were in the motor home, and he began kissing her with his tongue. She estimated that he fondled her breasts five times and "tongue kissed" her three times a week.
After living in the motor home for approximately 10 months, appellant and L. moved back into the home with Mrs. Griffin. The abuse continued and, after a few months, Mrs. Griffin again "kicked [them] out." Appellant and L. moved to another town.
When L. was 14 years old, she ran away and contacted the police department about the abuse. On April 9, 2007, in a pretextual telephone call to appellant, L. told appellant she was tired of him touching her. Appellant said he was sorry and that he was "finished." When appellant asked if L. was somewhere where other people could hear her, she said she was in the bathroom at a friend's and no one else could hear her. Appellant then said he had only done things that she said he could, like touch her leg and behind. Appellant explained that he would have stopped if she had asked him to. L. asked appellant if he would stop touching her "thing." Appellant responded by saying "I will stop touching you at all, " because she was his daughter, not some "mother f-er slut" and there would be "no more tongue."
Later in the call when L. asked if she could stop touching his penis, appellant assured her that she did not have to do any of "that" anymore. He told her he loved her and missed her. L. asked appellant if she could be pregnant because appellant rubbed his penis on her. Appellant responded that she could not be pregnant because "it has to go inside of your [sic] and I have to squirt." He acknowledged that "mom caught us, " but claimed they weren't doing anything. He also acknowledged that it was his fault, but also "a little bit" L.'s fault.
(Doc. 18, Exh. A).
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor , 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy , 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008 , 118 S.Ct. 586 (1997); Jeffries v. Wood , 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy , 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
II. Legal Standard of Review
A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless he can show that the state court's adjudication of his 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); Lockyer v. Andrade , 538 U.S. 63, 70-71 (2003); Williams v. Taylor , 529 U.S. at 412-413.
A state court decision is "contrary to" clearly established federal law "if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or "if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result." Brown v. Payton , 544 U.S. 133, 141 (2005), citing Williams , 529 U.S. at 405-406 (2000). Consequently, a federal court may not grant habeas relief simply because the state court's decision is incorrect or erroneous; the state court's decision must also be objectively unreasonable. Wiggins v. Smith , 539 U.S. 510, 511 (2003) (citing Williams v. Taylor , 529 U.S. at 409).
In Harrington v. Richter , 562 U.S. ___, 131 S.Ct. 770 (2011), the U.S. Supreme Court explained that an "unreasonable application" of federal law is an objective test that turns on "whether it is possible that fairminded jurists could disagree" that the state court decision meets the standards set forth in the AEDPA. If fairminded jurists could so disagree, habeas relief is precluded. Harrington , 131 S.Ct. at 786. The Supreme Court has "said time and again that an unreasonable application of federal law is different from an incorrect application of federal law.'" Cullen v. Pinholster , 131 S.Ct. 1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court "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 of fairminded disagreement." Harrington , 131 S.Ct. at 787-788.
The second prong of federal habeas review involves the "unreasonable determination" clause of 28 U.S.C. § 2254(d)(2). This prong pertains to state court decisions based on factual findings. Davis v. Woodford , 384 F.3d at 637, citing Miller-El v. Cockrell , 537 U.S. 322 (2003). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims "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." Wiggins v. Smith , 539 U.S. at 520; Jeffries v. Wood , 114 F.3d at 1500. A state court's factual finding is unreasonable when it is "so clearly incorrect that it would not be debatable among reasonable jurists." Id .; see Taylor v. Maddox , 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor , 543 U.S. 1038 (2004).
To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker , 501 U.S. 979, 803 (1991); Robinson v. Ignacio , 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court decided the petitioner's claims on the merits but provided no reasoning for its decision, the federal habeas court conducts "an independent review of the record...to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis , 223 F.3d 976, 982 (9th Cir. 2002); see Himes v. Thompson , 336 F.3d 848, 853 (9th Cir. 2003). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan , 313 F.3d 1160, 1167 (9th Cir. 2002).
The prejudicial impact of any constitutional error is assessed by asking whether the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson , 507 U.S. 619, 623 (1993); see also Fry v. Pliler , 551 U.S. 112, 119-120 (2007)(holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).
Furthermore, where a habeas petition governed by the AEDPA alleges ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668 (1984), the Strickland prejudice standard is applied and courts do not engage in a separate analysis applying the Brecht standard. Avila v. Galaza , 297 F.3d 911, 918 n. 7 (9th Cir. 2002); Musladin v. Lamarque , 555 F.3d 830, 835 (9th Cir. 2009).
III. Review of Petitioner's Claims.
The instant petition itself alleges the following as grounds for relief: (1) the trial court violated Petitioner's constitutional rights by mis-instructing the jury (2) insufficient evidence to show that Petitioner qualified for a "one strike" sentence; and (3) ineffective assistance of trial counsel. (Doc. 13, pp. 7-8).
A. Erroneous Jury Instruction.
Petitioner first contends that the trial court erred in instructing the jury regarding uncharged crimes that could be used as propensity evidence. This contention is without merit.
1. The 5th DCA's Opinion.
The 5th DCA rejected Petitioner's claim as follows:
Appellant's only contention on appeal is that the trial court committed prejudicial error by instructing the jurors in the language of CALCRIM No. 1191, which concerns evidence of uncharged offenses offered as circumstantial evidence to prove predisposition. Appellant argues that, since no evidence of uncharged offenses was presented, the instruction permitted the jury to infer criminal propensity from evidence pertaining to a charged offense (count 7) to prove the other charged offenses (counts 1-6) by a preponderance of the evidence standard, undermining the due process requirement that proof of guilt of a charge be made beyond a reasonable doubt. We find no prejudicial error.
The procedural history is as follows. Following a jury conference held off the record, the trial court read into the record the jury instructions that would be given, including a modified version of CALCRIM No. 1191. According to the court, these were the instructions that the parties and court agreed upon. Following closing argument, the court read the modified version of CALCRIM No. 1191 as follows:
"The People presented evidence that [appellant] committed the crimes of between 2 and 30 separate charges  that were not charged in this case. These crimes are defined for you in these instructions that I have given you. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that [appellant], in fact, committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by the preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this uncharged offense as evidence entirely. [¶] If you decide that [appellant] committed the uncharged offenses, you may, but are not required to, conclude from that evidence that [appellant] was disposed or inclined to commit sexual offenses, and based on that decision also conclude that [appellant] was likely to commit and did commit the crimes alleged in Counts 1 through 7. If you conclude that [appellant] committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that [appellant] is guilty of the charged offenses. The People must still prove each element of every charge beyond a reasonable doubt. Do not consider this evidence for any other purpose except for the limited purpose of determining [appellant]'s disposition to commit sexual offenses."
The difficulty with appellant's argument is that he never raised it in the trial court either by objecting to the giving of CALCRIM No. 1191, or requesting a limiting instruction further clarifying the use of CALCRIM No. 1191 when applied to the facts given.
Initially, the parties disagree over whether any claim of error was forfeited by appellant's failure to object to the instruction at trial. Where a party claims on appeal that a legally correct instruction was too general or incomplete and in need of clarification, the party must show that it requested modification, clarification or amplification in the trial court or the contention is forfeited. ( People v. Valdez (2004) 32 Cal.4th 73 , 113; see also People v. Reliford (2003) 29 Cal.4th 1007 , 1012 [CALJIC No. 2.50.01, which contains similar language to that in CALCRIM No. 1191, is correct statement of the law].) In addition, the failure to object to an instruction has been held to forfeit a claim that an instruction was improperly given because it was unsupported by the evidence. (See, e.g., People v. Valdez, supra, at p. 137 [involving CALJIC No. 2.06, consciousness of guilt instruction].) But no objection is necessary to preserve a claim that an instruction violated a defendant's substantial rights. (§ 1259; People v. Kelly (2007) 42 Cal.4th 763 , 791.)
Assuming without deciding that appellant has not forfeited his claim, we nonetheless reject his argument. Appellant argues that the trial court's reference to "between 2 and 30 separate charges that were not charged in this case, " referred to L.'s testimony that she had been repeatedly touched in a sexual manner from the time she was eight until she was 14. Because the crime of continuous sexual abuse of a child, as charged in count 7, covered that same time period, appellant argues the instruction allowed the jury to use evidence of a charged offense (§ 288.5 in count 7) to prove the other charged ...