United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF
PETITION FOR WRIT OF HABEAS CORPUS
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
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).
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).
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 6, 7).
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).
OF FACTS 
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.
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.
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
portionof 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.
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.
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
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;
(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.
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
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).
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).
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)).
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.
first claim for relief, Petitioner asserts that he twice
received defective Miranda warnings. (ECF No. 1 at
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).
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.
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).
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.
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.
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
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
Ineffective Assistance of Counsel
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.
denying Petitioner's ineffective assistance claim
regarding trial counsel's failure to preserve the
Miranda claim for appeal, the California Court of
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
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.
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.
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).
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)).
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 65-69). At trial, the victim testified
that Petitioner touched her "middle part" and
breasts "more than one time." (1 RT 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.
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
Omission of Unanimity Instruction
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).
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
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."
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
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 ...