Deanda v. Madden

          ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS [RE: ECF 8]

          BETH LABSON FREEMAN United States District Judge

         Juan Jose Deanda, a state prisoner represented by counsel, filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state criminal conviction for two counts under California Penal Code § 288(a) (lewd or lascivious act on a child under the age of fourteen). ECF 8. Petitioner asserts two exhausted claims: instructional error leading to a due process violation and ineffective assistance of counsel. Respondent filed an answer and response addressing the merits of the two claims, and exhibits in support thereof. ECF 13, 14. Petitioner filed no traverse.^[2] Having reviewed the briefs and the underlying record, the Court concludes that Petitioner is not entitled to relief and DENIES the amended petition.

         I. BACKGROUND

         In 2009, Petitioner was tried and convicted in Santa Clara County Superior Court. A jury found Petitioner guilty of two counts of lewd or lascivious act on a child under the age of fourteen, and found true the allegation that petitioner committed the acts against more than one victim. Ans. Exh. 1 (Clerk’s Transcript (“CT”)) at 204, 207, 211, ECF 14-1. On March 5, 2010, the trial court sentenced Petitioner to 30 years to life in state prison. Id. at 259.

         Petitioner appealed and, on July 26, 2011, the California Court of Appeal issued a written opinion affirming the judgment and denying a petition for writ of habeas corpus. Ans. Exh. 9 (“Cal.Ct.App. Order”), ECF 14-5. On October 26, 2011, the California Supreme Court denied petitions for review in both the direct review and habeas cases. Ans. Exhs. 13, 15, ECF 14-5. On May 14, 2012, the United States Supreme Court denied a petition for writ of certiorari. Ans. Exh. 16, ECF 14-5.

         Petitioner initiated this case on May 9, 2013, asserting both exhausted and unexhausted claims. ECF 1. On October 16, 2014, the Court granted Respondent’s motion to dismiss on that basis with leave to amend. ECF 7. In his amended petition, Petitioner raises two claims for relief, both of which have been exhausted for the purpose of federal habeas corpus review. ECF 8.

         II. SUMMARY OF EVIDENCE AT TRIAL

         In its written opinion, the California Court of Appeal fairly and accurately summarized the factual background of Petitioner’s case at trial as follows:

1. Prosecution’s Case in Chief

On April 17, 2007, San Jose police officers were dispatched to an apartment complex with regard to a possible lewd act with a child. The officers went to apartment number 10, where the alleged victim lived. The officers also went to apartment number 33, where the suspect, defendant Deanda, lived. Inside the suspect’s apartment, there was a kitchen table, with Fritos and various candies on it, and a chair next to a window.

J.’s mother testified that she was living in apartment number 10 in April 2007. She called the police after an incident involving her then six-year-old daughter J., a kindergartener and the oldest of her three children. Her daughter J. asked her for money to buy an ice cream and soda from the woman who lived in an upstairs apartment with her son. The woman sold sodas, snacks, chips, candy, and ice cream from the window of her apartment to children and adults living in the complex. J. went up the stairs.

The next thing J.’s mother saw was her daughter J. running down the stairs and, when J.’s mother asked her what happened, J. told her “[t]he man tried to touch my parts.” J.’s mother said, “‘What, your conchita?’” J. replied, “‘Yes.’”

“Conchita” was the word they used to refer to “her intimate part, private part, where she goes pee.” Her daughter was very scared. It was important to J.’s mother to know whether the man had touched her or merely tried to touch her. Her daughter clarified that the man did touch her. He stuck his hand underneath her skirt and grabbed at her vaginal area. But J. was wearing shorts underneath. He told J. to come inside, he scratched her, and she ran.

J.’s mother told her daughter to go buy the ice cream but she did not want to go. She told her daughter that she would follow her. She wanted to identify the man. When they got there, her daughter said, “That’s the one.”

J.’s mother went downstairs to her apartment and told her daughter that she was going to call the police but first she was going to get clothes that were drying. She apparently ran into defendant downstairs and he asked her, “‘Ma’am, do you know what happened to my car?’” She answered no but indicated that she knew what he had done to her daughter and she was going to call the police.

J.’s mother called the police and spoke with an officer in Spanish while everything was fresh in her mind. She acknowledged that J. described a man reaching through the window to touch her. She could not remember telling the police that her daughter told her that he touched her vaginal area with an open hand. She could not remember telling officers that the touching incident had occurred the day before she called police.

A few weeks later, J.’s mother received a phone call from Officer Michel, another police officer, and they discussed what had happened to her daughter. The events were then still fresh in her memory. J.’s mother admitted telling Officer Michel that J. first told her that the man had tried to touch her and J. only later told her that the man did touch her.

J.’s mother variously reported that defendant had tried to touch or touched her daughter J. J.’s mother later explained that she had meant that he touched J.’s shorts, not J.’s panties.

J. testified that she was eight years old and in third grade at the time of trial and would be turning nine the following month. She explained that when she was in kindergarten, her mother told her “to buy sodas and she [her mother] didn’t know that he did bad stuff, and I went up to buy sodas and he . . . tried to touch me.” In court, J. identified “he” as defendant.

At trial, J. pointed out in a photograph the apartment window from which a man and a woman usually sold sodas. When she went to the window to buy sodas, defendant was there. J. said she was wearing a flowered pink skirt and red shorts underneath. She said he touched her private part with his hand and she felt his touch. J. ran to her mom.

J. remembered talking to the police who first came to the apartment and she remembered later talking to another police officer in a special room. She did her best to tell the truth both times. She admitted it was hard to remember what happened that day. Although she remembered being shown a picture of a little girl during the second interview, she could not recall circling a part of the girl’s body on the diagram. But she confirmed that the area circled in the diagram was the private part that defendant touched and she called it “my parts.”

On cross-examination, J. initially agreed that defendant reached out of the window and touched her but then she was unsure. She remembered telling police that the man reached out of the window. She did not remember telling the officer during the second interview that the man tried to lift her skirt. She did not remember telling that officer that she could not feel his hand on her part. J. could not remember how long the incident lasted. But she confirmed that the touching happened outside the apartment.

According to Officer Omar Sanchez, one of the officers dispatched to the apartment complex on April 17, 2007, J.’s mother informed him that her daughter had told her that a neighbor had “touched her in a private area.” J.’s mother was clear that her daughter had been touched. J.’s mother reported to him that, on April 17, her daughter asked her for money to buy ice cream. J.’s mother had given the daughter money and then noticed the daughter was hesitating to go buy the ice cream and asked her daughter what was wrong. The daughter said she did not want to go to the apartment because she was afraid she would be touched. J.’s mother reported that her daughter had told her that the previous day, April 16, she had gone to the apartment to buy soda and knocked on the window. The man had opened the window and asked what she wanted. When she told him she wanted some sodas, he “reached out from the window, and with an open palm touched her in her vaginal area.” J.’s mother told the officer that, after learning what had happened, she and her daughter had gone to the apartment and identified defendant as the man who had touched her daughter.

Officer Sanchez also talked with J. alone. J. told him that the previous day she had asked her mother for money to go to buy soda. When she got there, she knocked on the window and then spoke to defendant. As she asked for the soda, defendant reached out and with an open palm touched her in the vaginal area. When he asked her where she had been touched, she pointed toward her vaginal area. Defendant had told her to come inside his apartment and she had run home. J. told the officer where the suspect lived on the second story. Officer Sanchez then contacted the suspect.

At trial, Officer Sanchez pointed out apartment 33, the upstairs unit where defendant lived, in a photograph of the building and he identified a photograph of the inside of the apartment. He identified defendant as the suspect whom he had contacted. His report recorded J.’s height as three feet, five inches and defendant Deanda’s height as five feet, five inches.

On May 11, 2007, San Jose Police Detective Monica De La Cerda, a certified Spanish speaker and member of the sexual assault unit, recorded a telephone conversation with J.’s mother that had taken place in Spanish. J.’s mother explained that she had sent her daughter upstairs to get a soda from the woman who sold items such as ice cream, soda, and candy from her home, apartment number 33. Her daughter quickly returned without the soda and J.’s mother learned that her daughter was afraid and while the daughter was “up there getting the soda” “a man in that apartment had touched her.” The daughter informed her mother that the man had touched her in the vaginal area and told her to come inside the apartment but the daughter had run home. J.’s mother said that her daughter first told her that the man had tried to touch her vaginal area. The mother had said to her daughter, “I need you to tell me the truth.” The daughter then said that he did touch her.

About four days after the phone conversation between J.’s mother and Detective De La Cerda, J.’s mother brought J. to the children’s interview center to be personally interviewed by the detective. As a sexual assault investigator, Detective De La Cerda had more experience and specialized training in interviewing child victims of sexual assault than other officers. Detective De La Cerda wanted to clarify whether J. had actually been touched and whether the window’s size would permit somebody to have reached through the window.

During the interview, J. said that she had gone upstairs to buy a soda. She said she was wearing a black skirt with colored flowers and shorts underneath. J. repeatedly said a man had touched her with his hand and indicated that he had touched her vaginal area. She said that they were both outside by the window when the touching occurred. The detective showed a diagram to J. and asked her to circle the part of the body where she had been touched by defendant. J. circled the vaginal area. J. told the detective that the man had touched her on her skirt and she had shorts underneath. When asked whether she could feel the man’s hand on her part, she said that she could not. When the detective asked whether it hurt when the man touched her, she said that it did hurt and pointed to her vaginal area.

P., the alleged victim in count two, testified. He recognized apartment 33 in the photograph as the apartment where his grandmother still lived. It was a two-bedroom apartment and his Uncle Johnny lived there with his grandmother. At one point, he said he remembered her living there for about two years. But he then testified that he remembered going to that apartment since he was seven years old and he was 14 years old at the time of trial.

P. recalled that when he was about seven or eight years old, his Uncle Johnny, his mother’s brother, touched his “private” and made P. touch his uncle’s “privates” by grabbing P.’s hand and putting it under his uncle’s pants. At the time it happened, P. did not tell anyone. At trial, he identified defendant as his Uncle Johnny.

According to P., when he was 13 years old, he began to remember what his uncle had done while he and his little sister were grappling for the TV remote control and tickling each other. P. told his sister to stop because he “didn’t want to make the same mistake as [his uncle]” and told his sister he did not want to play anymore. His mother was angry about his behavior and P. went straight to his room. When his mother, who was mad, came to his room, P. told her what had happened with his uncle when he was about seven or eight. His mother reported the incident and a police officer came to talk to him at school in 2008, about a year before trial.

P. described the touching incident involving defendant, which had taken place in his grandmother’s apartment. His mother, his two sisters, and he had gone to stay with his grandmother because she was sick and his mother wanted to take care of the grandmother. His grandmother was in her bedroom with P.’s mother and two sisters. P. was in the living room watching defendant, who was lying on the couch and playing PlayStation 2. Defendant told P. to come close so P. could see; P. lay down next to defendant. After a little while, defendant slowly reached under P.’s boxers and shorts, defendant put his hand on P.’s testicles and “private, ” by which P. meant penis. Defendant also slowly grabbed P.’s right hand and held it “a little bit tight” and put it under his own boxers and placed P.’s hand onto defendant’s testicles and “private.” P. recalled that it felt weird to have his hand under his uncle’s underwear and he was confused and did not know what was happening. When asked if it was his choice to put his hand there, P. replied, “I'm not sure.” Defendant was moving P.’s hand “upward, down” on defendant’s private area. It felt to P. like “[s]omebody else was choosing” where his hand went. P. felt defendant’s hand on his skin and P. felt defendant’s skin. Defendant held P.’s hand on defendant’s private area for about one or two minutes. When P.’s mother came of his grandmother’s room, defendant quickly removed his hand and P.’s hand. P. thought that his mother did not see anything.

P. recalled that he was sent to bed but he could not sleep. At the time, he did not understand what had happened and he was confused; he did not tell anybody. P. continued to see defendant and nothing like that ever happened again. He stated that, during the previous school year, he started to remember what happened to him while learning about sex in school.

On cross-examination, P. agreed that he had previously stated in court that learning about abuse in school jogged his memory and prompted him to tell his mother about the touching incident. He acknowledged that he had not told police about the tickling incident with his sister and being in trouble with his mother but said that the officer did not ask him that type of question.

P. acknowledged that he had previously talked with someone from Child Protective Services (CPS) about being hit by his father. The CPS interview was in response to a June 24, 2003 referral. P. could not remember that he had no bruises or marks on him that day and he could not remember saying that his father hit him all the time. He said he had been using his own words.

At trial, P.’s mother indicated that, on the day in 2008 when P. disclosed the incident with defendant, she had been surreptitiously listening to P. and his younger sister playing in her bedroom because she was concerned when it became very quiet and “[t]hey were touching the bodies” and she did not like them to be “touching their bodies.” When P. came out, she lied that she had seen the way they were playing and took him to his room because he was in trouble. She asked him why he was playing that way and indicated that she did not like the way he was behaving. He told her about the incident with his uncle, whom P.’s mother identified in the courtroom as defendant. The next day, they talked more about the incident.

P.’s mother testified that P. told her that his uncle and he had been playing Nintendo while lying down in her mother’s living room and defendant had touched P.’s private parts and then had taken P.’s hand to touch his own private parts. P. said the touch was under their clothing. P. had wanted to play Nintendo and defendant had said, “it’s all right, let him play with me for a while, for a little longer.” When she later came out of the bedroom and turned toward the living room, P. and defendant stood up and they appeared surprised. She told P. to go to sleep.

When she heard about the incident from P., she remembered when it had happened. She and her children were sleeping at her mother’s house and her mother, her daughters, and she had gone to the mother’s bedroom.

P.’s mother reported the incident to a counselor at Kaiser. She was contacted by a detective.

Carl Lewis testified as an expert on “Child Sexual Abuse Accommodation Syndrome” (CSAAS). The syndrome is information to debunk myths or mistaken beliefs about how sexually abused children behave. Dr. Roland Summit coined the term and he believed it was important to make the adult community aware of the commonly held, but erroneous, beliefs that caused people to incorrectly reject children’s allegations of sexual assault.

The five CSAAS categories include (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, conflicted, unconvincing disclosure and (5) retraction. CSAAS is not a scientific instrument; it is not diagnostic. The main message of the syndrome is to not reject a child’s testimony out of hand but to look at the whole picture.

Lewis testified that secrecy describes the fact that sexual abuse occurs when the offender is alone or somehow isolated with the child. The abuse may occur in a public setting, but the offender may camouflage the behavior so it is not readily recognizable. The offender may go to some length to create an atmosphere of secrecy. The offender might wait until everyone else has gone to bed or left the house or the offender might go to a secluded part of the house, close the door, and turn up the television to muffle any sound. An offender can reinforce this sense of secrecy verbally or nonverbally. The offender might by a knowing glance communicate that this is a secret. The offender might indicate disclosure would cause bad things to happen, get the child in trouble, or not be believed or the offender might make overt threats such I will kill you, your family or your dog. The child receives the message that the child cannot talk about the abuse.

According to Lewis, child sexual abuse victims can experience a sense of helplessness because they are unable to resist, physically or emotionally, the sexual advances of an adult, particularly a loving, trusted adult. The struggle to bring disclosure of sexual abuse to light reinforces the feeling of helplessness. It is common for a child victim to “let out a little bit of information and then gauge the reaction, and if the child feels safe then the child might let out a little bit more information.” Sometimes a non-offending caretaker will not recognize a cry for help, such as a child victim saying he does not want to be left alone or go to the store with someone, and the child will think that “I tried to get help, but it didn’t work.” Lewis testified with regard to entrapment and accommodation that, when children are suffering sexual abuse and trapped by circumstances, they accommodate so they can go on with their lives, such as going to school or interacting with friends. The most common accommodation is acting as if nothing is wrong or actually denying anything is wrong if asked outright. The fact that a child continues to interact with or be around the offender does not necessarily mean that the abuse did not happen.

Lewis explained the disclosure is delayed, conflicted and unconvincing primarily because of the internal conflict of the children, who are weighing the pros and cons of disclosure. Since the consequences of disclosure may be unknown, children victims may delay disclosing the abuse. Delay is common. Children victims may give seemingly conflicting statements regarding what occurred. Children might minimize what occurred by saying the offender “tried to” molest them. Children also might not be familiar with certain terminology and there may be communication gaps and misunderstandings. Children have difficulty remembering how they initially reported the ...