United States District Court, N.D. California, San Jose Division
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 ...