United States District Court, E.D. California
For Christopher Burlew, Petitioner: Joseph J. Wiseman, LEAD ATTORNEY, Wiseman Law Group, PC, Davis, CA.
For Dwight Neven, Warden, Respondent: Paul Arvin Bernardino, LEAD ATTORNEY, California Attorney General's Office, Sacramento, CA.
JAMES K. SINGLETON, JR., Senior United States District Judge.
Christopher Burlew, a state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Burlew is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Pleasant Valley State Prison. Respondent has answered, and Burlew has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On July 29, 2009, Burlew was charged by amended information with 7 counts of lewd and lascivious acts on a child under 14 years of age, 6 counts of sexual penetration of a child 10 years of age or younger, and 1 count of sexual intercourse with a child 10 years of age or younger. The information alleged that all crimes occurred between January 1, 2007, and September 7, 2007. On direct appeal of his conviction, the Court of Appeal recounted the following facts underlying the information:
The offenses in this matter occurred sometime between September 1, 2006 and September 7, 2007, when [Burlew] was at least 20 years old and the victim was under 10. During this period, [Burlew] was living in the home of his aunt, T.O., and uncle, who had two children, H.O. and C.O. H.O., the victim in this matter, had her ninth birthday in November 2006, and attended the third grade between September 2006 and May 2007.
At approximately 8:00 p.m. on September 7, 2007, T.O. walked to the doorway of C.O.'s bedroom and saw C.O. sitting on the floor playing a video game and [Burlew] and H.O. sitting on a bed. [Burlew] had his arm around H.O. and his hand on her chest. T.O. immediately backed away and called for the children to go to the bathroom to brush their teeth and get ready for bed. She also asked [Burlew] to drive to Blockbuster Video to rent a movie.
As soon as [Burlew] departed, T.O. asked H.O. what was going on. H.O. answered, " With what?" T.O. asked if [Burlew] was touching H.O., and H.O. put her head down and began crying. T.O. insisted that H.O. tell her what was going on, and H.O. acknowledged [Burlew] was touching her. When T.O. asked where [Burlew] had been touching her, H.O. grabbed her mother's hand and put it on her chest and her " private" area. H.O. also indicated the touching was under her clothes. T.O. asked if [Burlew] had ever put anything inside her, and H.O. " was crying and crying and said, 'Yes.'" When asked what [Burlew] put inside her, H.O. said, " His wee wee." T.O. then asked where and how this happened. H.O. went to her bedroom and, after a minute, got on her hands and knees on top of the bed. H.O. said [Burlew] " put his wee wee inside of her and went back and forth." H.O. indicated this happened more than once.
T.O. woke her husband, who worked at night and slept during the day, and they took H.O. to the U.C. Davis Medical Center. However, an examination of H.O. was indeterminate for sexual penetration.
On September 18, 2007, H.O. was taken to the Sacramento " S.A.F.E. Center" for a one-on-one forensic interview. However, H.O. refused to discuss the molestations during the interview.
On October 3, 2007, H.O. began attending weekly counseling with a child and family therapist. For many months, H.O. would not discuss the molestations.
On January 31, 2008, T.O. made a pretext call to [Burlew]. During the call, [Burlew] admitted molesting H.O. but indicated the molestations did not occur over a very long period. He also admitted placing his penis close to H.O., touching her " private" with it, and masturbating H.O. However, he denied ever penetrating H.O. or having intercourse with her.
On March 3, 2008, during a counseling session, H.O. finally told the therapist that [Burlew] had touched her " privates" and would have her get on her hands and knees.
Three days later, H.O. was again taken to the S.A.F.E. Center for an interview. During that interview, H.O. discussed the molestations and indicated they occurred when she was nine years old. She also said they occurred during the day while her mother was gone and her father was asleep. H.O. indicated [Burlew] touched her " private" but nowhere else. She also indicated [Burlew] touched her with his fingers and then his " private." H.O. asserted [Burlew] touched her with his fingers perhaps six times and with his " private" four to five times. She also said [Burlew] touched her private with his private both outside and inside and, when his private was inside her, [Burlew] moved around a minute or so and pulled her to him. H.O. also indicated [Burlew] was in front and facing her at the time.
People v. Burlew, No. C064269, 2012 WL 4748959, at *1-2 (Cal.Ct.App. Oct. 5, 2012).
On August 6, 2009, Burlew proceeded to jury trial. The victim and her mother both testified at trial. The victim testified that Burlew touched her " private" with his finger and with his " private" while she was in the third grade, and her mother testified that her daughter began the third grade in September 2006. The prosecution moved to amend the starting date for the time allegation to September 2006 rather than January 2007. Burlew objected, and the trial court postponed a ruling.
In addition to testimony from the victim and her mother, the jury heard testimony from the victim's therapist, the physician's assistant who examined the victim at U.C. Davis, and the investigating officer. The jury also heard both the second S.A.F.E. interview and the pretext call. The defense consisted of expert testimony that the victim's medical examination showed there had been no penetration. Burlew did not testify. In argument to the jury, defense counsel did not contest that Burlew touched H.O. inappropriately.
At the close of evidence, the prosecution renewed its motion to amend the information to expand the time frame of the offenses backward to September 1, 2006. Burlew argued that the " on-or-about" standard instruction was adequate without amendment. Over the defense's objection, the court granted the amendment to reflect the beginning date to be September 2006 rather than January 2007.
During deliberations, the jury questioned the use of the term " vagina" in the verdict forms versus the use of the term " genitalia" in the instructions and sought direction from the court as to which term applied. The question highlighted a discrepancy between the charging document and California Penal Code § 288.7(b), which prohibits sexual penetration as defined in § 289. Section 289 defines sexual penetration as " the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." Cal. Penal Code § 289(k)(1). However, at the beginning of trial, the amended information alleged for each violation of § 288.7(b) that Burlew " inserted his finger into the victim's vagina."
The prosecution proposed that the verdict forms be amended for each of the § 288.7 charges to substitute the word " genitalia" for " vagina." The defense objected, arguing that the amendment would reduce the prosecution's burden of proof because the penetration need not be as deep to penetrate the genitalia as to penetrate the vagina. The court gave the prosecution leave to amend the information to substitute " genitalia" for " vagina, " and the verdict forms were amended accordingly. The amendment was consistent with the jury instructions, which tracked the statutory language. Burlew subsequently moved for a mistrial, which the trial court denied. The court then instructed the jury that penetration means " penetration, however slight, of the labia majora of the child for the purpose of sexual arousal or gratification."
The jury was also instructed with CALCRIM No. 3550. In relevant part, the jury was told:
When you go to the jury deliberation room, the first thing you should do is choose a foreperson. The foreperson should see to it that your discussions are carried on in an organized way and that everyone has a fair chance to be heard.
It is your duty in the jury deliberation room to talk with one another and to deliberate. You should try to agree on a verdict if you can. Each of you must decide the case for yourself, but only after you have discussed the evidence with the other jurors. Do not hesitate to change your mind if you become convinced that you were wrong, but do not change your mind just because other jurors disagree with you.
Keep an open mind and openly exchange your thoughts and ideas about this case. Stating your opinions too strongly at the beginning or immediately announcing how you plan to vote may interfere with an open discussion. Please treat one another courteously. Your role is to be an impartial judge of the facts, ...