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Palomar v. Madden

United States District Court, E.D. California

August 1, 2016

MARCOS PALOMAR, Petitioner,
v.
RAYMOND MADDEN, Respondent.

          FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent declined magistrate judge jurisdiction and this matter was therefore referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         I.

         BACKGROUND

         On February 14, 2013, Petitioner was convicted after a jury trial in the Madera County Superior Court of oral copulation upon a child ten years or younger (count 1), lewd and lascivious acts upon a child fourteen years or younger (counts 2 and 3), and a lewd and lascivious act upon a child fourteen years or younger by use of force, violence, duress, menace, or threat of great bodily harm (count 4). (CT[1] 119-22). On May 3, 2013, Petitioner was sentenced to a determinate term of sixteen years and a consecutive indeterminate term of fifteen years to life. (CT 184-87).

         On March 11, 2015, the California Court of Appeal, Fifth Appellate District, affirmed the judgment with the exception of finding that the trial court erred in imposing a $750 presentence report fee. People v. Palomar, No. F067273, 2015 WL 1089544, at *22 (Cal.Ct.App. Mar. 11, 2015). The California Supreme Court denied Petitioner's petition for review on June 17, 2015. (LDs[2] 6, 7).

         On August 20, 2015, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1). Therein, Petitioner raises the following claims for relief: (1) violation of his Miranda rights; (2) erroneous omission of unanimity instruction with respect to count 1; (3) insufficient evidence of force to support conviction on count 4; (4) erroneous application of an amended sentencing scheme with respect to count 4; and (5) erroneous prohibition of defense counsel's use of visual aid during closing argument. On November 23, 2015, Respondent filed an answer. (ECF No. 14). Petitioner has filed a traverse and supplemental traverse. (ECF Nos. 19, 23).

         II.

         STATEMENT OF FACTS [3]

         [D]uring a period of about one year, defendant sexually abused his then nine- or ten-year-old daughter in their home. At trial, Jane Doe testified her father touched her breasts and vagina on more than one occasion. In a forensic interview conducted shortly after her allegations surfaced, Jane told the interviewer defendant had also pushed her head down and placed his penis in her mouth. The interview was played for the jury after Jane denied during her trial testimony that conduct had occurred.

         Defendant testified as well. He claimed he touched his daughter's breasts only in response to her complaints of pain in that area. Further, he stated he touched her briefly on one occasion, over her clothing, to ensure she was wearing a sanitary napkin overnight because she was menstruating.

         With specific regard to the admissions of sexual contact with his daughter made during an interview with Detective Mark Trukki several days after his arrest, defendant testified the only reason he admitted to placing his penis in his daughter's mouth was because Trukki told defendant before the recorded portion[4]of the interview began that only he (Trukki) could help get defendant out of jail, and such an admission was necessary for defendant to receive that help. Defendant further testified he "made up" the other admissions regarding sexual contact with his daughter as a way to further elicit Trukki's assistance. He testified he never placed his penis in his daughter's mouth nor did he ever touch her sexually as was alleged.

Palomar, 2015 WL 1089544, at *l-2.

         III.

         STANDARD OF REVIEW

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor. 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged convictions arise out of Madera County Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his 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); Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams. 529 U.S. at 413.

         As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is "clearly established Federal law, " this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. In addition, the Supreme Court decision must '"squarely address [] the issue in th[e] case' or establish a legal principle that 'clearly extend[s]' to a new context to the extent required by the Supreme Court in . . . recent decisions"; otherwise, there is no clearly established Federal law for purposes of review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an end and the Court must defer to the state court's decision. Musladin, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760.

         If the Court determines there is governing clearly established Federal law, the Court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, [the] clearly established Federal law." Lockyer, 538 U.S. at 72 (quoting 28 U.S.C. § 2254(d)(1)). "Under the 'contrary to' clause, a federal habeas court may grant the writ 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] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at 72. "The word 'contrary' is commonly understood to mean 'diametrically different, ' 'opposite in character or nature, ' or 'mutually opposed.'" Williams, 529 U.S. at 405 (quoting Webster's Third New International Dictionary 495 (1976)). "A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Id. If the state court decision is "contrary to" clearly established Supreme Court precedent, the state decision is reviewed under the pre-AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc).

         "Under the 'reasonable application clause, ' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "[A] federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411; see also Lockyer, 538 U.S. at 75-76. The writ may issue only "where there is no possibility fair minded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Richter, 562 U.S. at 102. In other words, so long as fair minded jurists could disagree on the correctness of the state court's decision, the decision cannot be considered unreasonable. Id. If the Court determines that the state court decision is objectively unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

         The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state4aw procedural principles to the contrary." Richter, 562 U.S. at 99. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

         Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. This court "must determine what arguments or theories ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 102.

         IV.

         REVIEW OF CLAIMS

         A. Miranda Claim

         In his first claim for relief, Petitioner asserts that he twice received defective Miranda warnings. (ECF No. 1 at 8).[5] Petitioner contends that the state court erred in denying his motion to suppress his statements based on defective Miranda admonitions and that counsel was ineffective in failing to preserve this claim for appeal. (Id. at 8-9). Respondent argues that Petitioner's Miranda claim is procedurally barred and the state court's rejection of Petitioner's ineffective assistance of counsel claim was not unreasonable or contrary to Supreme Court precedent. (ECF No. 14 at 15).

         Petitioner's Miranda claim was raised on direct appeal to the California Court of Appeal, Fifth Appellate District, which found that Petitioner had forfeited the claim. Palomar, 2015 WL 1089544, at *6. The claim also was raised in the petition for review, which the California Supreme Court summarily denied. (LDs 6, 7). Where "the last reasoned opinion on the claim explicitly imposes a procedural default, [the Court] will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits." Ylst, 501 U.S. at 803.

         1. Procedural Default

         A federal court will not review a petitioner's claims if the state court has denied relief on those claims pursuant to a state law procedural ground that is independent of federal law and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). This doctrine of procedural default is based on the concerns of comity and federalism. Id. at 730-32. However, there are limitations as to when a federal court should invoke procedural default and refuse to review a claim because a petitioner violated a state's procedural rules. Procedural default can only block a claim in federal court if the state court "clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989).

         Here, the California Court of Appeal found that Petitioner failed to preserve his Miranda claim for appeal under California Evidence Code section 353(a) because Petitioner's stated grounds for objection at trial were different from the arguments he presented on appeal. Palomar, 2015 WL 1089544, at *5-6. As the California Court of Appeal clearly and expressly stated that its decision on the Miranda claim rests on a state procedural bar, procedural default is appropriate if the state procedural bar is independent and adequate.

         To qualify as "independent, " a state procedural ground "must not be 'interwoven with the federal law.'" Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). "To qualify as an 'adequate' procedural ground, a state rule must be 'firmly established and regularly followed.'" Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009)). The Ninth Circuit has taken a burden-shifting approach to determining the adequacy of a state procedural ground. See Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). First, the state must plead an independent and adequate state procedural bar as an affirmative defense. The burden then shifts to the petitioner "to place that defense in issue, " and can be satisfied by "asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Id. If the petitioner satisfies his burden, the burden shifts back to the state, which bears "the ultimate burden of proving the adequacy" of the state procedural bar. Id. at 585-86.

         Respondent asserts that the state court denied Petitioner's Miranda claim pursuant to an independent and adequate state procedural ground. (ECF No. 14 at 23). In finding that Petitioner failed to preserve his Miranda claim for appeal, the California Court of Appeal relied on California Evidence Code section 353(a), which "allows a judgment to be reversed because of erroneous admission of evidence only if an objection to the evidence or a motion to strike it was 'timely made and so stated as to make clear the specific ground of the objection.'" People v. Demetrulias, 39 Cal.4th 1, 20 (2006) (quoting Cal. Evid. Code § 353(a)). This state procedural ground is independent as it is not interwoven with federal law. It is also "firmly established" since the statute became effective on January 1, 1967, and codified well-settled California procedural rules. Cal. Evid. Code § 353 cmt. It is also "regularly followed" since the California Supreme Court has recognized that pursuant to this statute, it has "consistently held that the 'defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes that ground not cognizable." People v. Seijas, 36 Cal.4th 291, 302 (2005) (quoting People v. Green, 27 Cal.3d 1, 22 (1980)). Petitioner has not raised any challenges to the independence and adequacy of this state procedural ground and thus, has failed to place the defense in issue. Accordingly, the Court finds that the California Court of Appeal applied an independent and adequate state procedural ground, and Petitioner has procedurally defaulted his Miranda claim.

         A petitioner may obtain federal review of a defaulted claim by demonstrating either "(1) 'cause for the default and actual prejudice as a result of the alleged violation of federal law, ' or (2) 'that failure to consider the claims will result in a fundamental miscarriage of justice.'" Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (quoting Coleman, 501 U.S. at 750)). As Petitioner has failed to raise the issues of cause and prejudice or a fundamental miscarriage of justice, the Court finds that Petitioner is procedurally barred from bringing his Miranda claim and it should be dismissed.

         2. Ineffective Assistance of Counsel

         In his first claim for relief, Petitioner also asserts that counsel was ineffective for failing to preserve his Miranda claim for appeal. (ECF No. 1 at 9). This claim was presented on direct appeal to the California Court of Appeal, Fifth Appellate District, which denied the claim in a reasoned decision. Palomar, 2015 WL 1089544, at *6-8. The claim also was raised in the petition for review, which the California Supreme Court summarily denied. (LDs 6, 7). As federal courts review the last reasoned state court opinion, the Court will "look through" the California Supreme Court's summary denial and examine the decision of the California Court of Appeal. See Brumfield v. Cain. 135 S.Ct. 2269, 2276 (2015); Johnson v. Williams. 133 S.Ct. 1088, 1094 n.l (2013); Ylst, 501 U.S. at 806.

         In denying Petitioner's ineffective assistance claim regarding trial counsel's failure to preserve the Miranda claim for appeal, the California Court of Appeal stated:

Alternatively, defendant argues his trial counsel rendered ineffective assistance by failing to object.
An ineffective assistance of counsel claim requires a showing that "counsel's action was, objectively considered, both deficient under prevailing professional norms and prejudicial." (People v. Seaton (2001) 26 Cal.4th 598, 666, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "[T]he burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Lewis (1990) 50 Cal.3d 262, 288; see People v. Weaver (2001) 26 Cal.4th 876, 961.) This means the defendant "must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to [the] defendant in the sense that it 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' [Citations.]" (People v. Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland, supra, at p. 686.)
As to the first element, an appellate "court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]" (People v. Gray (2005) 37 Cal.4th 168, 207; seePeople v. Scott (1997) 15 Cal.4th 1188, 1212.)
Were we to assume here that defense counsel's performance was deficient because of his failure to object, defendant cannot show he was prejudiced. To do so, he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) However, prejudice must be established as " 'a "demonstrable reality, " not simply speculation as to the effect of the errors or omissions of counsel.' " (In re Clark (1993) 5 Cal.4th 750, 766.)
Defendant contends this case, in the absence of his admissions, was based entirely upon the victim's questionable credibility. Therefore, defendant argues he suffered prejudice by admission of that evidence, entitling him to reversal. We are not swayed.
It is plain the inconsistencies between Jane Doe's trial testimony and the statements she made during the forensic interview shortly after her father's arrest are the result of Jane's wish for her father to come home. Notably, too, Jane was very nervous.
At trial, Jane repeatedly denied any act of oral copulation-she said her father's "middle part" (penis) was never in her mouth. She also testified she did not remember telling the police officer and the forensic interviewer otherwise. At one point, Jane said her mouth "almost" touched her father's middle part, followed immediately by her statement that she doesn't "really remember" and "tried to forget it." Later, Jane claimed her father "pulled" her down and her mouth almost touched his middle part. It happened more than once.
Jane did testify her father touched her breasts and her "middle part" (vagina) on more than one occasion. Jane never wavered from her numerous statements that she told both the police officer and the forensic interviewer the truth. She also testified her father told her not to tell anyone about the touching. Jane never wanted to touch her father and testified she was "grossed out" and "anxious" about what had happened. When she was asked the worst thing that happened when her father abused her, Jane replied, "probably everything that happened." Officer Rosel testified Jane told him her father had been touching her for the past two years. He touched Jane's breasts and vagina. The officer said at one point Jane told him her father forced her head down toward his middle part and told her to lick it. Jane cried throughout the interview.
Forensic interviewer Josefina Roderick testified at trial. She conducted an interview with Jane Doe in February 2012. The interview was video recorded. Roderick testified the video recording is accurate. It was played for the jury.
Defendant contends the interview "reveals a demeanor that does not provide much confidence in what [Jane] was saying." He notes she was "fidgety and distracted" and appeared to be suffering from a cough and cold. We have reviewed the videotape of Roderick's interview of Jane Doe. Defendant's complaints are not well taken. While the recording does depict an obviously nervous young girl who appears to be suffering the effects of a cold, we find nothing at all to support an inference of a lack of credibility. "A child witness is not a miniature version of an adult witness. Young children think, relate, and communicate in a qualitatively different manner than adults." (Couzens & Bigelow, Sex Crimes: Cal. Law and Procedure (The Rutter Group 2014) § 8.2.)
There was no evidence Jane had a motive to lie about being sexually abused by her father. She testified she loved her dad and she thought they had a good relationship. She missed him and wanted him to come home. In fact, that evidence tends instead to lend support to the inference Jane was motivated to minimize her father's abuse in her testimony at trial. Additionally, as Jane explained, she did not directly report the abuse. Rather, she told her closest friend Breanna. Breanna counseled Jane to tell someone. Jane did not, but Breanna did.
Lastly, we are not persuaded by defendant's assertion that In re EdwardS. (2009) 173 Cal.App.4th 387 is similar to this case. The claim of ineffective assistance of counsel in Edward S. pertained to counsel's failure to investigate potentially exculpatory evidence and the resulting prejudice. Counsel was aware of certain issues bearing on the 10-year-old witness's credibility, including that she "had been exposed to more sexual conduct than most 10-year-olds [and] that on a specific occasion she threatened to lie in order to work her will, " a claim that could purportedly be corroborated by more than one individual. (Id. at p. 408.) Edward S. is unlike this case because here there is no potentially exculpatory evidence at issue, nor are there similar concerns regarding Jane's credibility. Even assuming error on the part of defense counsel, on this record we find any error to be harmless beyond a reasonable doubt.

Palomar, 2015 WL 1089544, at *6-8.

         a. Legal Standard

         The clearly established federal law governing ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668 (1984). In a petition for writ of habeas corpus alleging ineffective assistance of counsel, the court must consider two factors. Strickland, 466 U.S. at 687. First, the petitioner must show that counsel's performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 687. The petitioner must show that counsel's representation fell below an objective standard of reasonableness, and must identify counsel's alleged acts or omissions that were not the result of reasonable professional judgment considering the circumstances. Richter, 562 U.S. at 105 ("The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms, ' not whether it deviated from best practices or most common custom.") (citing Strickland, 466 U.S. at 690). Judicial scrutiny of counsel's performance is highly deferential. A court indulges a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 687. A reviewing court should make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at that time." Strickland, 466 U.S. at 689.

         Second, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. A court "asks whether it is 'reasonable likely' the result would have been different. . . . The likelihood of a different result must be substantial, not just conceivable." Richter. 562 U.S. at 111-12 (citing Strickland. 466 U.S. at 696, 693). A reviewing court may review the prejudice prong first. See Pizzuto v. Arave. 280 F.3d 949, 955 (9th Cir. 2002).

         Because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations."). In effect, review of ineffective assistance of counsel claims under the AEDPA is '"doubly deferential' in order to afford 'both the state court and the defense attorney the benefit of the doubt.'" Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting Burt v. Titlow, 134 S.Ct. 10, 13 (2013)).

         b. Analysis

         Petitioner has failed to establish that the state court's determination that Petitioner was not prejudiced by counsel's failure to preserve his Miranda claim for appeal was contrary to, or an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of fact. A "fairminded jurist" could agree with the California Court of Appeal's determination that the victim was credible and that Petitioner failed to demonstrate prejudice from the admission of his statements. It was not objectively unreasonable for the state court to find that the inconsistencies between the victim's trial testimony and her forensic interview were the result of her nervousness and her wish for Petitioner to come home. It also was not objectively unreasonable for the state court to find that there was no evidence the victim had motive to lie about Petitioner's abuse and that the evidence lends support to the inference the victim was motivated to minimize Petitioner's abuse in her testimony at trial. See Wood v. Allen, 558 U.S. 290, 301 (2010) ("[E]ven if '[r]easonable minds reviewing the record might disagree' about the finding in question, 'on habeas review that does not suffice to supersede the trial court's . . . determination.'") (second alteration in original) (quoting Rice v. Collins, 546 U.S. 333, 341-42 (2006)). In the forensic interview, the victim stated that "[t]here were-like-only two times" she put her mouth on Petitioner's penis. (Supp. CT[6] 65-69). At trial, the victim testified that Petitioner touched her "middle part" and breasts "more than one time." (1 RT [7]140). (See 1 RT 140-44, 157-58, 161, 170-71; Supp. CT 45, 56-57, 59-61). The victim also testified that Petitioner grabbed her hand and was still holding onto her hand when she touched his "middle part." (2 RT 324-25; Supp. CT 52-54, 62). In light of the victim's trial testimony and statements during the forensic interview, it was not unreasonable for the state court to find that Petitioner failed to show "that there is a reasonable probability that ... the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

         Based on the foregoing, the Court finds that the state court's decision denying Petitioner's ineffective assistance of counsel claim was not contrary to, or an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of fact. The decision was not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. Accordingly, Petitioner is not entitled to habeas relief on his first claim, and it must be denied.

         B. Omission of Unanimity Instruction

         In his second claim for relief, Petitioner asserts that the trial court erroneously failed to instruct the jury on unanimity with respect to count 1. (ECF No. 1 at 4). Petitioner contends that there were at least two possible acts on two different occasions for which the jury could have convicted Petitioner of count 1, and that there were sharply different defenses to the two possible acts. (Id. at 12). Respondent argues that the state court's adjudication was not unreasonable or contrary to Supreme Court precedent because a unanimity instruction is not constitutionally required and the omission was harmless. (ECF No. 14 at 21).

         This claim was raised on direct appeal to the California Court of Appeal, Fifth Appellate District, which denied the claim in a reasoned opinion. Palomar, 2015 WL 1089544, at *8-9. The claim was also raised in the petition for review, which was summarily denied by the California Supreme Court. (LDs 6, 7). As federal courts review the last reasoned state court opinion, the Court will "look through" the California Supreme Court's summary denial and examine the decision of the California Court of Appeal. See Brumfield, 135 S.Ct. at 2276; Ylst, 501 U.S. at 806. In denying Petitioner's claim regarding the omission of a unanimity instruction on count 1, the California Court of Appeal stated:

Defendant maintains the trial court erred in failing to instruct sua sponte on unanimity as to the oral copulation alleged in count 1. He further contends the error requires reversal. Plaintiff concedes the instruction should have been given, however, she claims the error was harmless.
We review a claim of instructional error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581; People v. Waidla, supra, 22 Cal.4th at p. 733.) In a criminal case, a jury verdict must be unanimous. (People v. Collins (1976) 17 Cal.3d 687, 693.) The jury must agree unanimously that the defendant is guilty of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281.) "[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count." (People v. Deletto (1983) 147 Cal.App.3d 458, 472.) Even if a unanimity instruction is not requested, the trial court has a duty to give the instruction whenever the evidence warrants it. (People v. Carrera (1989)49Cal.3d291, 311, fn. 8.)
Count 1 alleged defendant had committed the crime of oral copulation pursuant to section 288.7, subdivision (b). Accordingly, the jury was instructed with CALCRTMNo. 1128:
"The defendant is charged in Count One with engaging in oral copulation with a child 10 years of age or younger.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant engaged in an act of oral copulation with Jane Doe;
"2. When the defendant did so, Jane Doe was 10 years of age or younger;
"3. At the time of the act, the defendant was at least 18 years old.
"Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.
"Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required." (Original italics.)
Moreover, the jury was also instructed regarding the credibility of witnesses, evaluating conflicting evidence, the testimony of a single witness to prove any fact, and conviction of a sexual assault crime can be based solely on the testimony of the complaining witness.
Even if we assume the trial court erred in failing to sua sponte instruct the jury with a unanimity instruction, any error is harmless beyond a reasonable doubt because the jury clearly believed Jane Doe's testimony. And, the failure to give a unanimity instruction is harmless "if the record indicate[s] the jury resolved the basic credibility dispute against the defendant and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed." (People v. Jones (1990) 51 Cal.3d 294, 307.)
Despite some conflict between Jane Doe's testimony at trial and the statements she gave during the forensic interview, the record reveals the jury resolved the basic credibility dispute against defendant and would have convicted him of any of the various offenses shown by the evidence to have been committed.
During the forensic interview, Jane said that there "were-like-only two times" that she put her mouth on her father's penis. On one occasion, Jane was taking a shower and her father was in the bathroom with her. He "cleaned his middle thing" with water. Jane did not want to touch it, but he tried to "put [her] head down there so [she] could lick it." Her father told her to look down; Jane did so. Then her mouth was close to her father's penis and he was looking at her and signaling with his eyes for her to lick it. He pushed her head down with his hand. She did not want to lick it. On another occasion, Jane was lying on the floor sleeping and her father had laid down next to her. He directed Jane to slide down so she was facing his "middle thing." He put his hand on her head and told her to open her mouth. He pushed her head and she "licked" his penis. It went in her mouth and it felt "gross." Afterward, Jane got up and brushed her teeth. Her dad told her not to tell anyone. Although Jane's description of these two events-one in the bedroom and one in the bathroom-could be interpreted as describing one completed act of oral copulation because Jane did not explicitly describe her father's penis being inside her mouth in the bathroom incident, she did begin her description of the bedroom and bathroom incidents by saying her father's penis had been in her mouth "two times."
In his statement to detectives, defendant admitted he placed the tip of his penis in Jane's mouth on one occasion. He claimed Jane came into the bathroom while he was taking a shower. He opened the shower curtain and asked her to "do something" for him. She asked "what?" and he signaled what he wanted. He told her to put his penis in her mouth; she touched the tip of his penis with her mouth and then said she did not like it. Defendant admitted also that there were other times he tried to have Jane orally copulate him, but she pulled away on those other occasions. He told the detectives that he "respected when [Jane] said no." When the detective was summarizing his admissions, defendant again acknowledged his penis went in Jane's mouth on one occasion while ...

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