Cabrera v. McDowell

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND DENYING CERTIFICATE OF APPEALABILITY

          YVONNE GONZALEZ ROGERS United States District Judge

         Petitioner Miguel Cabrera, ^[1] 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.

         I. FACTUAL BACKGROUND

         The California Court of Appeal described the relevant facts as follows:

         The Prosecution’s Case

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 Officer John Ballard testified that when he interviewed Jane on November 19, she appeared to be “shaken up” and was withdrawn and quiet.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 6]}

^{[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]}

^{[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 financial support.

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 Station.

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 sexual abuse.

^{[FN 8:]} Before trial the court limited Lewis’s testimony to the issues of recantation and delayed reporting.

         Defense Testimony

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 brackets added).

         II. PROCEDURAL BACKGROUND

         On July 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)^[2]; 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.^[3]

         On 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 358-362.

         On 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.

         On 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^[4] 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 Marsden^[5]hearing. Id. Finally, Petitioner contended that the trial court erred by imposing consecutive sentences for counts one and three. Id.

         On 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.

         On 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).

         On November 5, 2014, Petitioner filed a petition for review in the California Supreme Court. See People v. Cabrera, Case No. S214435 (Nov. 5, 2014).

         On 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.

         On December 11, 2013, the California Supreme Court denied the petition for review. Resp’t Ex. 4.

         On February 11, 2014, the state supreme court denied Petitioner’s state habeas petition. Resp’t Ex. 5.

         On May 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 id.

         On 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.

         III. LEGAL STANDARD

         A 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).

         A state 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.

         Under 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).

         Even if 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)).

         On 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).

         When 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.

         Where 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.

         IV. DISCUSSION

         A. Sufficiency of the Evidence of Forcible Lewd Acts

         1. Background

         Petitioner 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.^[6]Specifically, he argues that there was no evidence that the lewd acts were committed by force or duress. Id.

         In rejecting this claim, the state appellate court stated as follows:

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 person.”

“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).

         2. Applicable Law

         The Due 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.

         The 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.

         On 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).

         Under 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)).

         3. Analysis

         As 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.

         The 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).

         The 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).

         The 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 Petitioner.

         Viewing 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.

         B. Lesser Included Offenses

         Petitioner 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^[7]; 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.

         The 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.

         The 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.

         However, “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.

         Accordingly, 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.

         C. Circumstantial Evidence Instruction

         1. Background

         Petitioner 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).

         The 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 ...