United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND
DENYING CERTIFICATE OF APPEALABILITY
GONZALEZ ROGERS United States District Judge
Miguel Cabrera,  a state prisoner currently incarcerated at
Ironwood State Prison, brings the instant pro se
habeas action under 28 U.S.C. § 2254 to challenge his
2011 conviction and sentence rendered in the Santa Clara
County Superior Court involving sexual offenses against his
step-daughter, Jane Doe. Having read and considered the
papers filed in connection with this matter and being fully
informed, the Court hereby DENIES all claims in the amended
petition for the reasons set forth below.
California Court of Appeal described the relevant facts as
Jane Doe is Petitioner’s stepdaughter. [FN
4] Petitioner married Jane’s mother when Jane was
seven years old. In November 2010, Jane was 17 years old.
[FN 4:] We refer to the victim in this case as
Jane or Jane Doe to protect her anonymity.
On November 19, 2010, Jane went to the Gilroy Police
Department after she ran away from home. Officer John Ballard
testified that when he interviewed Jane on November 19, she
appeared to be “shaken up” and was withdrawn and
quiet. Jane told Officer Ballard that she had been molested
by her stepfather starting when she was eight or nine years
old. Petitioner started by rubbing her breast and vagina on
almost a daily basis until she was 13 years old and started
menstruating. At that time, Petitioner started having
intercourse with her; however, prior to intercourse
Petitioner would lick Jane’s vagina, rub her and then
have intercourse. Jane estimated that this happened at least
15 times when she was 13 and continued until she was 17. Jane
told Officer Ballard that Petitioner forced her, other times
she would “just go along with it for fear of getting
hit.” Jane said that Petitioner had slapped her in the
past. [FN 5]
[FN 5:] During Jane’s trial testimony, after
she identified her own voice, a recording of Jane’s
interview with Detective Ballard was played for the jury and
moved into evidence.
Officer Ballard had Jane make a pretext telephone call to
Petitioner. During the telephone call Jane told Petitioner
that she thought she might be pregnant and that it was by
him. After a pause, Petitioner responded, “No, no, no,
no.” Petitioner did not admit or deny the implication
that he had had sexual intercourse with Jane. [FN
[FN 6:] A recording of the pretext telephone
conversation was played for the jury.
Officer Ballard interviewed Petitioner on the night of
November 19 at the Gilroy Police Station. Initially,
Petitioner denied that he had sexually molested Jane.
However, after the officer used a ruse-he asked Petitioner
why his DNA would have been found inside Jane-Petitioner told
the officer that a month earlier Jane “came on to
him” and they had consensual sex until he realized that
it was wrong and he stopped. Officer Del Moral testified that
during the interview Petitioner appeared calm and was
cooperative; Petitioner even laughed a couple of times.
[FN 7:] Portions of the video recording of
Petitioner’s interview were played for the jury during
Jane’s trial testimony.
Gilroy Police Corporal Rosa Quinones interviewed Jane
initially. Jane told her that Petitioner started sexually
molesting her when she was eight or nine years old.
Petitioner touched her vagina until she turned 13 and then he
started having intercourse with her. Jane told her that she
did not want to have intercourse with Petitioner; she did not
like it. On one occasion, Petitioner slapped her because she
said no, but he had intercourse with her anyway.
At trial, Jane testified that Petitioner never touched her
inappropriately. She admitted that in November 2010, she said
that Petitioner had sexually molested her. She acknowledged
that on the day after she ran away she told her friend and
her boyfriend that she had suffered sexual abuse since she
was seven or eight. However, she testified that she made up
the story because she wanted her freedom and was mad at
Petitioner for taking away her cellular telephone. Jane
admitted that she told the police that Petitioner had
sexually abused her for years. In addition, she acknowledged
that she feared if she told anyone what had happened
Petitioner would be locked up, her mother would lose her
husband and her family would lose Petitioner’s
Jane listened to Petitioner’s statement to the police
where he admitted that he put his penis into Jane’s
vagina before he realized that it was wrong. Jane continued
to deny that anything had happened. On cross examination Jane
said that the first time she said that the accusations were
false was when she testified at the preliminary hearing held
on July 8, 2011, but she told her social worker that she had
made up the accusations before then. Jane said that she
needed help to stop lying.
During her testimony, Jane stated that Petitioner would beat
her if she did not listen; this started when she was about
eight years old. Petitioner would use a looped belt to hit
her on her behind or sometimes her back or legs. Jane said
that Petitioner had only slapped her once by accident. Jane
denied that Petitioner had slapped her about two weeks before
she ran away, but acknowledged that was what she had told the
police. Jane said that she had tried to run away before, but
Petitioner and her mother would always stop her from leaving.
Jane’s mother testified that Jane ran away from home on
November 18, 2010, after an argument about doing chores. The
following day, Jane’s mother reported her missing to
the police. According to Jane’s mother, before Jane ran
away, her daughter never told her that anything inappropriate
had happened between her and Petitioner. Jane’s mother
did not believe that the accusations were true. She said that
Jane was a liar and although Jane was strong-willed, she
believed that someone pushed Jane into making false
accusations. Jane’s mother stated that even if
Petitioner had admitted that he had sex with Jane and touched
her breasts, she would still believe that Jane was a liar.
Jane’s mother said that Jane never appeared to be
afraid of Petitioner. Jane was expected to do a large amount
of chores. However, as she got older she began to resist
doing them. Jane began to complain that her parents did not
let her go out with her friends; Jane would often lie to
escape her responsibilities or to avoid punishment.
Jane’s mother testified that on November 18, 2010, Jane
refused to do her cleaning chores. Consequently, Petitioner
instructed her to take away Jane’s cellular telephone.
Initially, Jane refused to give up the telephone, but
eventually she threw it or handed it angrily to her. Then,
Jane began to clean the bathroom and kitchen. When she was
done, Jane was still angry, which caused her three year old
sister to cry. Petitioner told Jane to go to the living room.
Instead, Jane left the house.
Jane’s mother and Petitioner knew that Jane was dating
a boy who was 17 years old. They retrieved his telephone
number from Jane’s telephone and went to his house to
look for her.
Jane’s boyfriend testified that on November 19 he met
with Jane and she told him she had run away from home because
of something that had happened with her stepfather. Jane said
that her stepfather had raped her and it started around the
time she was 13 years old. Jane’s boyfriend testified
that it was his father that took Jane to the Gilroy Police
As noted, a recording of Jane’s interview was played
for the jury. In the interview Jane told the police that
Petitioner would touch her vagina on almost a daily basis
until she was 13. After she was 13, Petitioner started having
intercourse with her at least twice a week; she described a
routine that occurred every time Petitioner had intercourse
with her. The incidents would occur when her mother was not
home. Petitioner would call her over, start touching her
breasts and vagina and then take off her clothes; Petitioner
would orally copulate her almost every time they had
intercourse. After he took off her clothes, Petitioner would
make her lie down, then, he would take off his clothes, get
on top of her, start kissing her, and have intercourse with
her. Sometimes Petitioner would use a condom, but sometimes
not. Petitioner assured her that if she ever became pregnant
he would “take care of it.” Jane said that
sometimes she would say no, but Petitioner would still make
her do it. Sometimes he would stop talking to her for days.
The last incident happened about two weeks before she left.
She had told Petitioner “no” and he had slapped
her. Jane acknowledged that despite her telling Petitioner to
stop, Petitioner thought she liked it.
Carl Lewis testified as an expert on [Child Sexual Abuse
Accommodation Syndrome or] CSAAS that victims of child sexual
abuse often delay in reporting the abuse out of fear of the
outcome. [FN 8] Specifically, the child is afraid
of what will happen if she tells anyone what has happened
including such things as the break-up of her family and anger
or violence from the abuser. Child victims of sexual abuse
often retract their accusations. This is so because the child
finds herself in a great deal of chaos after the accusation
is made and so the child retracts the accusation in order to
make things better or make them return to normal. As a result
of CSAAS, the victim’s claim should not be rejected
outright because it seems illogical or unbelievable. Rather
it should be accepted and investigated thoroughly; there
should be no preconceived ideas about how children react to
[FN 8:] Before trial the court limited
Lewis’s testimony to the issues of recantation and
Doctor Annette Ermshar testified as an expert for the defense
that CSAAS was designed for doctors, psychologists and
therapists to treat children and not to interrogate the
child. CSAAS is not helpful in determining which children
have been sexually abused and which children have not. Both
groups may exhibit the same behavior and sexually abused
children may not exhibit any of the CSAAS behavior. CSAAS is
not currently accepted by the scientific community because it
does not provide any useful information. On cross examination
Doctor Ermshar acknowledged that some children who have been
sexually abused delay reporting the abuse, adapt and survive
in that environment and later retract their claim of abuse.
People v. Cabrera, No. H037730, 2013 WL 5348082,
*2-4 (Cal.Ct.App. Sept. 25, 2013) (footnotes in original and
15, 2011, the Santa Clara County District Attorney filed an
information in which Petitioner was charged with three counts
of aggravated sexual assault on a child under 14 years of age
pursuant to California Penal Code § 269 (counts one
through three); six counts of lewd or lascivious acts
upon a child by force, violence, duress, menace or fear or
“forcible lewd acts” pursuant to California Penal
Code § 288(b)(1) (counts four through nine); and four
counts of rape by force, violence, duress, menace or fear
pursuant to California Penal Code § 261(a)(2), (counts
10 through 13). 1CT 149-158.
October 31, 2011, following approximately three days of trial
testimony, the jury found Petitioner not guilty of counts two
and four, and guilty on all the remaining counts. 2CT
December 5, 2011, the trial court imposed a determinate
prison term of 54 years (full term consecutive sentences for
counts five through 13) and a consecutive indeterminate term
of 30 years to life (15 years to life for both counts one and
three). 2CT 391-396.
December 14, 2011, Petitioner appealed the judgment to the
California Court of Appeal. 2CT 397. On appeal, Petitioner
raised seven issues. Cabrera, 2013 WL 5348082, *1.
First, Petitioner challenged the sufficiency of the evidence
of force as it pertains to counts five through nine-forcible
lewd acts with a child under the age of 14. Id.
Second, Petitioner contended that all the counts involving
force-counts four through nine (forcible lewd acts), count
one (aggravated sexual assault based on forcible rape) and
counts 10 through 13 (forcible rape) must be reversed because
the trial court failed to instruct on lesser included
offenses. Id. Third, Petitioner argued that the
trial court erred by failing to instruct the jury on how to
consider circumstantial evidence of facts other than his
mental state. Id. Fourth, Petitioner claimed the
trial court erred in admitting evidence of
CSAAS because there was no evidence that the
jurors needed to be disabused of any misconceptions; and by
instructing the jurors that they could use the testimony in
considering the victim’s testimony. Id. Fifth,
Petitioner argued that considered cumulatively all the
foregoing errors violated his right to a fair trial.
Id. Sixth, Petitioner alleged the trial court
violated his Sixth Amendment right to counsel when it failed
to conduct a Marsdenhearing. Id. Finally,
Petitioner contended that the trial court erred by imposing
consecutive sentences for counts one and three. Id.
August 9, 2013, Petitioner also filed a state habeas petition
in the California Court of Appeal, alleging claims of
ineffective assistance of counsel (“IAC”). In
re Miguel Cabrera on Habeas Corpus, Case No. H040001
(Aug. 9, 2013); Dkt. 9 at 2. In his state habeas petition,
Petitioner argued that he was deprived of the effective
assistance of counsel because his trial counsel failed to
move to suppress statements he made when he was interviewed
by police officers. Cabrera, 2013 WL 5348082, *1. In
addition, Petitioner claimed that his trial counsel was
ineffective in failing to present expert testimony that would
have demonstrated that he does not have the psychological
character of a person who would commit the offenses charged
in this case. Id. Finally, Petitioner claimed that
the cumulative errors of trial counsel resulted in prejudice.
Dkt. 9 at 2.
September 25, 2013, the California Court of Appeal affirmed
the conviction. Cabrera, 2013 WL 5348082, *21;
Resp’t Ex. 3. The state appellate court also considered
Petitioner’s habeas petition, and summarily denied it
in a separate order filed on the same date, September 25,
2013. In re Miguel Cabrera on Habeas Corpus, Case
No. H040001 (Sept. 25, 2013).
November 5, 2014, Petitioner filed a petition for review in
the California Supreme Court. See People v. Cabrera,
Case No. S214435 (Nov. 5, 2014).
November 21, 2013, Petitioner filed a state habeas petition
in the California Supreme Court, in which he raised his IAC
claims. See Cabrera (Miguel) on H.C., Case No.
S214777 (Nov. 21, 2013); Dkt. 9 at 2.
December 11, 2013, the California Supreme Court denied the
petition for review. Resp’t Ex. 4.
February 11, 2014, the state supreme court denied
Petitioner’s state habeas petition. Resp’t Ex. 5.
30, 2014, Petitioner filed the instant habeas action in this
Court. Dkt. 1. On October 30, 2014, Petitioner filed his
amended petition, which is the operative petition in this
action. Dkt. 9. Petitioner raises the same seven claims that
he had raised on direct appeal, as well as the IAC claims,
which he had raised in his state habeas petitions. See
November 25, 2014, this Court issued an Order to Show Cause.
Dkt. 10. Respondent filed an Answer. Dkt. 14. Although given
the opportunity to do so, Petitioner did not file a Traverse.
The matter is fully briefed and ripe for adjudication.
federal court may entertain a habeas petition from a state
prisoner “only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). Under the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, a district court may not grant
a petition challenging a state conviction or sentence on the
basis of a claim that was reviewed on the merits in state
court unless the state court’s 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.” 28 U.S.C. § 2254(d). The first prong
applies both to questions of law and to mixed questions of
law and fact, see Williams (Terry) v. Taylor, 529
U.S. 362, 407-09 (2000), while the second prong applies to
decisions based on factual determinations, see Miller-El
v. Cockrell, 537 U.S. 322, 340 (2003).
court decision is “contrary to” Supreme Court
authority, that is, falls under the first clause of section
2254(d)(1), only if “the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on
a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Williams
(Terry), 529 U.S. at 412-13. A state court decision is
an “unreasonable application of” Supreme Court
authority, falling under the second clause of section
2254(d)(1), if it correctly identifies the governing legal
principle from the Supreme Court’s decisions but
“unreasonably applies that principle to the facts of
the prisoner’s case.” Id. at 413. The
federal court on habeas review 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.” Id. at 411. Rather, the
application must be “objectively unreasonable” to
support granting the writ. Id. at 409.
28 U.S.C. § 2254(d)(2), a state court decision
“based on a factual determination will not be
overturned on factual grounds unless objectively unreasonable
in light of the evidence presented in the state-court
proceeding.” See Miller-El, 537 U.S. at 340;
see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th
Cir. 2000). Moreover, “a determination of a factual
issue made by a State court shall be presumed to be correct,
” and the petitioner “shall have the burden of
rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
constitutional error is established, habeas relief is
warranted only if the error had a “substantial and
injurious effect or influence in determining the jury’s
verdict.” Penry v. Johnson, 532 U.S. 782,
795-96 (2001) (quoting Brecht v. Abrahamson, 507
U.S. 619, 638 (1993)).
federal habeas review, AEDPA “imposes a highly
deferential standard for evaluating state-court
rulings” and “demands that state-court decisions
be given the benefit of the doubt.” Renico v.
Lett, 559 U.S. 766, 773 (2010) (internal quotation marks
omitted). In applying the above standards on habeas review,
this Court reviews the “last reasoned decision”
by the state court. See Robinson v. Ignacio, 360
F.3d 1044, 1055 (9th Cir. 2004).
there is no reasoned opinion from the highest state court to
consider the petitioner’s claims, the court looks to
the last reasoned opinion. Ylst v. Nunnemaker, 501
U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234
F.3d 1072, 1079 n.2 (9th Cir. 2000). Thus, a federal court
will “look through” the unexplained orders of the
state courts rejecting a petitioner’s claims and
analyze whether the last reasoned opinion of the state court
unreasonably applied Supreme Court precedent. See
Ylst, 501 U.S. at 804-06; LaJoie v. Thompson,
217 F.3d 663, 669 n.7 (9th Cir. 2000). The last reasoned
decision in this case is the state appellate court’s
unpublished disposition issued on September 25, 2013, which
relates to Petitioner’s first seven federal claims in
the amended petition.
the state court gives no reasoned explanation of its decision
on a petitioner’s federal claim, a federal court should
conduct “an independent review of the record” to
determine whether the state court’s decision was an
objectively unreasonable application of clearly established
federal law. Plascencia v. Alameida, 467 F.3d 1190,
1197-98 (9th Cir. 2006); Himes v. Thompson, 336 F.3d
848, 853 (9th Cir. 2003). Here, Petitioner presented the
remaining federal claims-his IAC claims-in his state habeas
petitions, which the state appellate and supreme courts
summarily denied. See In re Miguel Cabrera on Habeas
Corpus, Case No. H040001 (Sept. 25, 2013); Resp’t
Ex. 5. As such, these IAC claims may be reviewed
independently by this Court to determine whether that
decision was an objectively unreasonable application of
clearly established federal law. See Plascencia, 467
F.3d at 1197-98; Himes, 336 F.3d at 853.
Sufficiency of the Evidence of Forcible Lewd Acts
contends that the evidence was insufficient to support the
jury’s verdict of guilty on five counts of forcible
lewd acts under California Penal Code § 288(b)(1). Dkt.
9 at 44-46.Specifically, he argues that there was no
evidence that the lewd acts were committed by force or
rejecting this claim, the state appellate court stated as
We disagree and focus on the duress element of section 288,
subdivision (b)(1).[FN 9]
[FN 9:] As this court recognized in People v.
Quinones (1988) 202 Cal.App.3d 1154, “force”
means “‘physical force substantially different
from or substantially in excess of that required for the lewd
act’ . . . .” (Id. at p. 1158.) We do
not find evidence of force in the evidence in this case.
Section 288, subdivision (b)(1) makes it a felony to commit a
lewd or lascivious act upon a child under the age of 14
“by use of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
“Duress” means “a direct or implied threat
of force, violence, danger, hardship or retribution
sufficient to coerce a reasonable person of ordinary
susceptibilities to (1) perform an act which otherwise would
not have been performed or, (2) acquiesce in an act to which
one otherwise would not have submitted.” (People v.
Pitmon (1985) 170 Cal.App.3d 38, 50 (Pitmon)
[disapproved on another ground as stated in People v.
Soto (2011) 51 Cal.4th 229].)
In determining whether there is sufficient evidence of
duress, “the focus must be on the defendant’s
wrongful act, not the victim’s response to it.”
(People v. Soto, supra, 51 Cal.4th at p. 246
(Soto).) Our Supreme Court approved the following
instruction defining duress. “‘Duress means
the use of a direct or implied threat of force,
violence, danger, hardship, or retribution sufficient to
cause a reasonable person to do [or submit to] something that
he or she would not otherwise do [or submit to]. When
deciding whether the act was accomplished by duress, consider
all the circumstances, including the age of the child and
(his/her) relationship to the defendant.’”
(Soto, supra, 51 Cal.4th at p. 246, fn. 9.) Such an
instruction was given in this case.
Thus, in evaluating a sufficiency-of-the-evidence challenge
to a finding of duress, we consider the totality of the
circumstances “including the age of the victim, and
[the victim’s] relationship to [the] defendant.”
(Pitmon, supra, 170 Cal.App.3d at p. 51.) Physical
control over the victim, even if it is insufficient to
constitute force may create duress. (People v.
Schulz (1992) 2 Cal.App.4th 999, 1005.) Other factors
include the physical size disparity between the defendant and
the victim that may contribute to the victim’s sense of
vulnerability. (Pitmon, supra, at p. 51.) In
addition, “the position of dominance and authority of
the defendant and his continuous exploitations of the
victim” (People v. Cardenas (1994) 21
Cal.App.4th 927, 940) are relevant factors in determining
whether the sex crime was accomplished through duress. Other
relevant circumstances may include threats to harm the
victim, physically controlling a resisting victim, and
threats of retribution if the victim reveals the molestation.
(People v. Cochran (2002) 103 Cal.App.4th 8, 14.)
Jane described how Petitioner would beat her if she did not
listen; this started when she was about eight years old.
Petitioner would use a looped belt to hit her on her behind
or sometimes her back or legs. As to the lewd touching, Jane
told the police that Petitioner would touch her vagina on
almost a daily basis until she was 13. Petitioner was
Jane’s stepfather and according [to] Jane [Petitioner]
was approximately 5’ 8” and of a heavy build.
Even at age 17 Jane was only 5’ 4”. Given the
relationship between Petitioner and Jane, the size
differential that would have existed when Jane was between
the ages of eight and 13, Petitioner’s continuous
exploitation of Jane and the physical abuse that Jane would
suffer if she did not listen to Petitioner, we conclude that
there was sufficient evidence that this was forcible lewd
touching in the sense that Petitioner accomplished all the
acts charged by means of duress. Jane acquiesced to all the
acts because, as the evidence showed, if she did not
Petitioner would likely beat her with a belt. That is duress.
(People v. Cochran, supra, 103 Cal.App.4th at p. 16
fn. 6. [when the victim is as young as this victim and is
molested by her father in the family home, in all but the
rarest cases duress will be present].)
Accordingly, we reject Petitioner’s assertion that
there was insufficient evidence to support his convictions
for forcible lewd acts.
Cabrera, 2013 WL 5348082, *4-5 (footnote in original
and brackets added).
Process Clause “protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364
(1970). A state prisoner who alleges that the evidence in
support of his state conviction cannot be fairly
characterized as sufficient to have led a rational trier of
fact to find guilt beyond a reasonable doubt therefore states
a constitutional claim, see Jackson v. Virginia, 443
U.S. 307, 321 (1979), which, if proven, entitles him to
federal habeas relief, see Id. at 324.
Supreme Court has emphasized that “Jackson
claims face a high bar in federal habeas proceedings . . .
.” Coleman v. Johnson, __U.S. __, 132
S.Ct. 2060, 2062 (2012) (per curiam). A federal court
reviewing collaterally a state court conviction does not
determine whether it is satisfied that the evidence
established guilt beyond a reasonable doubt. Payne v.
Borg, 982 F.2d 335, 338 (9th Cir. 1992). The federal
court “determines only whether, ‘after viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable
doubt.’” Id. (quoting Jackson,
443 U.S. at 319). Only if no rational trier of fact could
have found proof of guilt beyond a reasonable doubt, has
there been a due process violation. Jackson, 443
U.S. at 324.
habeas review, a federal court evaluating the evidence
under Jackson and Winship should
take into consideration all of the evidence presented at
trial. LaMere v. Slaughter, 458 F.3d 878, 882 (9th
Cir. 2006) (in a case where both sides have presented
evidence, a habeas court need not confine its analysis to
evidence presented by the state in its case-in-chief). If
confronted by a record that supports conflicting inferences,
a federal habeas court “must presume-even if it does
not affirmatively appear in the record-that the trier of fact
resolved any such conflicts in favor of the prosecution, and
must defer to that resolution.” Jackson, 443
U.S. at 326. A jury’s credibility determinations are
therefore entitled to near-total deference. Bruce v.
Terhune, 376 F.3d 950, 957 (9th Cir. 2004). Except in
the most exceptional of circumstances, Jackson does
not permit a federal habeas court to revisit credibility
determinations. See Id. (credibility contest between
victim alleging sexual molestation and defendant vehemently
denying allegations of wrongdoing not a basis for revisiting
jury’s obvious credibility determination); see also
People v. McGravey, 14 F.3d 1344, 1346-47 (9th Cir.
1994) (upholding conviction for sexual molestation based
entirely on uncorroborated testimony of victim).
28 U.S.C. § 2254(d), a federal habeas court applies
Jackson and Winship with an additional
layer of deference. Juan H. v. Allen, 408 F.3d 1262,
1274 (9th Cir. 2005). A federal habeas court must ask whether
the operative state court decision “reflected an
‘unreasonable application’ of Jackson
and Winship to the facts of the case.”
Id. at 1275 (citing 28 U.S.C. § 2254(d)(1)).
explained above, on direct appeal, Petitioner argued that
there was insufficient evidence to support his conviction
under California Penal Code § 288(b)(1), which requires
a finding that the lewd or lascivious act was accomplished
“by use of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person.” Cal. Penal Code § 288(b). While
Petitioner argued there was no evidence that the lewd acts
were committed by force or duress, the state
appellate court only focused on duress because it
“d[id] not find evidence of force in the evidence in
this case.” Cabrera, 2013 WL 5348082, *4 n.9.
California courts define “duress” as “a
direct or implied threat of force, violence, danger, hardship
or retribution sufficient to coerce a reasonable person of
ordinary susceptibilities to (1) perform an act which
otherwise would not have been performed or, (2) acquiesce in
an act to which one otherwise would not have
submitted.” People v. Schultz, 2 Cal.App.4th
999, 1005 (1992). And as the state appellate court explained
above, the totality of the circumstances are considered,
including the age of the victim, the familial relationship
between the victim and the perpetrator, and the disparity in
size between the victim and the perpetrator.
Cabrera, 2013 WL 5348082, *5 (citing
Cochran, 103 Cal.App.4th at 14).
state appellate court’s rejection of Petitioner’s
insufficiency of the evidence claim was not an
“objectively unreasonable” application of
Jackson and Winship. See 28 U.S.C.
§ 225(d); Juan H., 408 F.3d at 1275. The state
appellate court reasonably determined that there was
substantial evidence of duress in this case and thus there
was sufficient evidence to support Petitioner’s
convictions for forcible lewd acts upon a child under the age
of 14 under California Penal Code § 288(b)(1).
record shows, at the time of the offense, Jane was around
seven or eight years old when Petitioner began molesting her.
4RT 314-315. Petitioner was Jane’s stepfather and
filled a parental role. 4RT 311. Jane was afraid to tell
anyone about the sexual abuse because Petitioner would
“be locked up, ” her mother would lose her
husband, and her family would lose Petitioner’s
financial support. 5RT 369-370. Furthermore, the record shows
that Petitioner touched Jane in a sexual manner every year of
her life between the ages of seven and seventeen. 4RT
314-320. All of the sexual abuse was against her will. 4RT
320. She never consented to it or initiated sexual
intercourse with Petitioner. 4RT 321; 5RT 362. Sometimes
Petitioner forced her, and other times she went along with it
for fear of getting hit. 4RT 320-321; 5RT 357-358, 360-362,
417. Although Jane did not describe specific acts of force,
she did testify that Petitioner slapped her when she said no
to having sexual intercourse with him. 4RT 320. Thus, the
aforementioned evidence shows that Petitioner was able to
perform acts which he otherwise could not have performed, and
Jane acquiesced to acts, which she otherwise would not have
submitted to, because of implied threats of force from
the aforementioned evidence in the light most favorable to
the prosecution, a rational trier of fact could have found
that, based on the totality of the circumstances,
Jane’s acquiescence was due at least in part to an
implied threat of force from Petitioner, which shows there
was sufficient evidence of duress. Thus, the state appellate
court’s decision was reasonable in rejecting the
sufficiency-of-the-evidence challenge to a finding of duress
and concluding that any rational trier of fact could have
found Petitioner guilty beyond a reasonable doubt on the five
counts of forcible lewd acts. Accordingly, the state
appellate court’s denial of this claim was not an
unreasonable application of Jackson and
Winship. This claim is DENIED.
Lesser Included Offenses
claims that the trial court failed to instruct the jury on
lesser-included offenses thereby violating his rights to due
process under both the federal and California Constitutions.
Dkt. 9 at 46. Specifically, Petitioner contends that the
trial court should have given the jury the option of
convicting him of non-forcible lewd acts with a child
pursuant to California Penal Code § 288(a) in counts
five through nine; unlawful sexual intercourse with a minor
pursuant to California Penal Code § 261.5(a) in counts
one and 10 through 13; and non-forcible oral copulation
pursuant to California Penal Code § 288a(b)(2) and
(c)(1) in count three. Id. Petitioner also asserts
that the failure to instruct on these lesser included
offenses was prejudicial. Id.
state appellate court rejected Petitioner’s claim upon
finding no error in the trial court’s failure to
instruct on the aforementioned lesser-included offenses.
Cabrera, 2013 WL 5348082, *5-8.
failure to instruct on a lesser-included offense in a capital
case is constitutional error if there was evidence to support
the instruction. See Beck v. Alabama, 447 U.S. 625,
638 (1980). But the failure of a state trial court to
instruct on lesser-included offenses in a non-capital case
does not present a federal constitutional claim. See
Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000);
Windham v. Merkle, 163 F.3d 1092, 1105-06 (9th Cir.
1998). Petitioner’s claim that the trial court erred by
not instructing the jury on the aforementioned
lesser-included offenses-as to all the forcible sex
crimes-fails because Petitioner’s case was not a
capital case. See id.
“the defendant’s right to adequate jury
instructions on his or her theory of the case might, in some
cases, constitute an exception to the general rule.”
Solis, 219 F.3d at 929 (citing Bashor v.
Risley, 730 F.2d 1228, 1240 (9th Cir. 1984)).
Solis suggests that there must be substantial
evidence to warrant the instruction on the lesser-included
offense. Id. at 929-30 (no duty to instruct on
voluntary manslaughter as lesser-included offense to murder
because evidence presented at trial precluded a heat of
passion or imperfect self-defense instruction; no duty to
instruct on involuntary manslaughter because evidence
presented at trial implied malice). However, this Court finds
that Petitioner’s claim is without merit. Petitioner
has not presented any evidence showing that his case is an
exception to the general rule announced in Solis.
Petitioner is not entitled to federal habeas relief on his
failure to give a lesser-included offense instruction claim
because the state appellate court’s rejection of the
claim cannot be said to be objectively unreasonable.
See 28 U.S.C. § 2254(d); Williams, 529
U.S. at 409. Therefore, this claim is DENIED.
Circumstantial Evidence Instruction
claims that the trial court erred when it failed to instruct
the jury with CALCRIM No. 224 regarding circumstantial
evidence. Dkt. 9 at 55. He argues that this error
“reduced the prosecution’s burden of proof and
denied Petitioner his right to due process and trial by jury
under the Sixth and Fourteenth Amendments.”
Id. He concedes, however, that the trial court did
instruct the jury with CALCRIM No. 223 (which explains the
difference between proving facts by direct evidence or by
circumstantial evidence) as well as CALCRIM No. 225 (which is
a similar but more specific instruction regarding the use of
circumstantial evidence to prove intent).
state appellate court held that CALCRIM No. 225, and not
CALCRIM No. 224, was the appropriate instruction given the
evidence at trial by stating as follows:
Appellant contends that the trial court erred by failing to
instruct on how to consider circumstantial evidence of facts
other than his mental state. Appellant asserts that the
disputed issue in this case concerned whether the alleged
acts occurred, not whether he had the required intent or
mental state. Appellant argues the trial court was required
to instruct the jury with CALCRIM No. 224[FN 13]
and by failing so to do the court violated its duty to
instruct on general principles of law relevant to the issue
of the case, reduced the prosecutor’s burden of proof
and deprived him of his constitutional rights to due process
and trial by jury. Furthermore, the giving of CALCRIM No.
225[FN 14] did not render the error harmless and
may have contributed to the prejudice.
[FN 13:] CALCRIM No. 224 provides: “Before
you may rely on circumstantial evidence to conclude that a
fact necessary to find the defendant guilty has been proved,
you must be convinced that the People have proved each fact
essential to that conclusion beyond a reasonable doubt.
[¶] Also, before you may rely on circumstantial evidence
to find the defendant guilty, you must be convinced that the
only reasonable conclusion supported by the circumstantial
evidence is that the defendant is guilty. If you can draw two
or more reasonable conclusions from the circumstantial
evidence, and one of those reasonable conclusions points to
innocence and another to guilt, you must accept the one ...