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Diaz v. Davey

United States District Court, E.D. California

March 6, 2017

DARRYL DIAZ, Petitioner,
v.
DAVID DAVEY, Warden, Respondent.

          FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent, David Davey, warden of California State Prison, Corcoran, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Rebecca Whitfield of the office of the California Attorney General. The parties declined magistrate judge jurisdiction. (ECF No. 6, 17.)

         I. Procedural Background

         Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Fresno, following his conviction by jury trial on October 12, 2011, for three counts of each of sexual intercourse with a child and lewd act upon a child. (Lodged Doc. 3, Clerk's Tr. at 423- 26.) On February 17, 2012, Petitioner was sentenced to an indeterminate prison term of fifty (50) years to life plus an additional determinate term of seven years. (Id.)

         Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District. (Lodged Doc. 8.) On December 23, 2013, the appellate court affirmed the conviction. (Answer, Ex. A) Petitioner sought review by the California Supreme Court on January 28, 2014. (Lodged Doc. 11.) The petition for review was denied on March 12, 2014. (Lodged Doc. 12.)

         Petitioner proceeded to file collateral appeals in the form of petitions for writ of habeas corpus in the state courts. He filed a petition with the Fresno County Superior Court on September 10, 2014. (Lodged Doc. 13.) It was dismissed on September 26, 2014 without prejudice to refiling as Petitioner failed to attach a proper proof of service. (Lodged Doc. 14.) Petitioner then filed a petition for writ of habeas corpus with the California Supreme Court on June 1, 2015. The petition was summarily denied on August 19, 2015. (Lodged Docs. 15-16.)

         Petitioner filed his federal habeas petition on June 15, 2015. (Pet., ECF No. 1.) Petitioner raised the following five claims for relief: (1) that counsel was ineffective by not questioning the victim whether she was home at the time of the incident; (2) that counsel was ineffective for failing to request transcripts of the opening and closing statements; (3) that the trial court erred by failing to give an unanimity instruction; (4) that the trial court erred in failing to exclude certain images that were overly prejudicial; and (5) that his due process rights were violated by the use of a jury instruction regarding the admission of prior crimes evidence. (Pet. at 5-17.)

         Respondent filed an answer to the petition on January 27, 2016. (Answer, ECF Nos. 18-19.) Petitioner filed a traverse to the answer on April 15, 2016. (Traverse, ECF No. 24.)

         II. Statement of Facts[1]

         STATEMENT OF FACTS

         I. Prosecution Evidence

         On or around October 12, 2008, E., [fn1] then nine years of age, [fn2] attended a celebrity golf tournament with defendant, her legal father. The following night, while she was sleeping in his bedroom, she awoke to him "breathing behind [her]" and "touching [her] butt with his no-no."[fn3] Roughly one week before January 17, 2009, E. was watching cartoons at defendant's apartment when defendant used a cable to connect his desktop computer to the television. He showed her "nasty videos" and pictures from his computer "up on the TV" of adults, teenagers, and preadolescents "kissing, " "touching their private parts, " and "doing the bad thing."[fn4] Defendant had E. sit on his lap, placed his hand on her crotch, had her remove her panties, and touched her vagina. When she went to the bathroom, he pulled down his pants. Defendant went to E., who had returned and sat on the couch, and touched her with his penis. He laid her on her back, partially inserted his penis into her vagina for at least five seconds, and withdrew when she expressed pain. Defendant then repositioned E. on her stomach, partially inserted his penis into her anus, and withdrew when she expressed pain. At some point, he touched her breasts.

FN1: In this opinion, certain persons are identified by an abbreviated name in accordance with our Supreme Court's policy regarding protective nondisclosure. Also, individuals who share a last name are identified primarily by their first name to avoid confusion. In both instances, no disrespect is intended.
FN2: At the time of trial, E. was 12 years of age.
FN3: E. identified the male "no-no" as the penis and female "no-no" as the vagina.
FN4: E. testified that she watched such videos on at least five occasions.

         E. described other incidents that transpired at defendant's apartment "[e]very other week or so" between October 12, 2008, and January 15, 2009. When she watched the television show American Idol, [fn5] defendant rubbed her crotch, watched pornography and masturbated during commercial breaks, and deposited his semen onto her toes and hand. When she did not watch American Idol, he watched pornography and touched her in the living room and bedroom. The "bad touching" did not occur on Wednesdays. E. saw defendant ejaculate on previous occasions and specified that he inserted his penis into her anus "less than five times, but at least two times[.]" She was warned by defendant "[not to] tell anybody about what's happening, because if [she] do[es], he'll get in trouble and [she]'ll get in trouble."

FN5: The prosecutor and defense counsel stipulated that American Idol aired on KMPH Fox 26 the nights of Tuesday, January 13, 2009, and Wednesday, January 14, 2009.

         During a sleepover at the home of A.E., E.'s mother and defendant's ex-wife, on Saturday, January 17, 2009, E. revealed to Emily C., her friend, that defendant touched her, masturbated, deposited "white stuff" between her toes, and "tried to stick his private part inside of hers but it hurt too much so he quit." Thereafter, at Emily's insistence, E. told A.E. that defendant "would take the white stuff out of his man part and put it between her toes, " "made her watch weird Web sites, " and "tried to put his man part in her no-no but she was too loud so he stopped." A.E. had E.E., then her husband, call the police.

         Officer Jay Froman, Jr., was dispatched to A.E.'s home on January 17, 2009. He interviewed E., who detailed that defendant "tried to put his penis in her vagina, " "play[ed] with his no-no part, " had her "rub[] [his penis] up and down, " ejaculated "onto her face" or "into his hand and then rub[bed] it on her feet, " and used his middle and index fingers to "spread apart ... and ... rub her private parts ... 'like someone who was trying to get chocolate sauce off their fingers[.]'" The incidents occurred "[o]ver the last year." E. also told Froman that defendant let her stay up past her bedtime to watch American Idol only if she looked at Web sites containing videos and images of "boys' no-no parts going into the girl's private parts" and he "g[o]t to cum in [her] mouth."[fn6]

FN6: According to Froman, E. denied that defendant actually ejaculated into her mouth because "it made her sick when he ejaculated onto her face and that is why she would not let him do that in her mouth."

         On January 18, 2009, the police executed a search warrant at defendant's apartment. Forensic analysis of his computer's internal hard drive uncovered approximately 2, 500 images of child pornography and related search terms. The trial court admitted five of these images as circumstantial evidence of propensity and the jury viewed each image for three seconds via slide-show presentation.[fn7]

FN7: The trial court denied defense counsel's motion in limine to exclude all pornographic images from evidence. Defense counsel made a continuing objection.

         II. Defense Evidence

         On January 18, 2009, E. underwent a forensic medical examination for sexual abuse. She did not sustain genital abrasions, bruising, redness, tearing, swelling, or bleeding or exhibit signs of previous trauma or healed injuries. Judy Malmgren, a registered nurse and certified sexual assault nurse examiner, reviewed the examination records and opined that the lack of physical findings was "consistent with no acts of sexual penetration having occurred[.]" She also attested that "it is not unusual for there to be no findings with a child sexual assault allegation" and an absence of findings may result when vaginal or anal penetration is slight. Laboratory analysis of two pairs of panties belonging to E., taken from defendant's apartment, did not detect semen.

         E. was interviewed by Maria Gutierrez at the Multi-Disciplinary Interview Center (MDIC) on January 22, 2009. She told Gutierrez that defendant touched her crotch and chest for the first time in 2007 when she was watching the television show Extreme Makeover: Home Edition. The next day, he "French kiss[ed]" her more than once.[fn8] During the last three incidents, which occurred on the Monday, Tuesday, and Thursday before E. went to A.E.'s home, defendant touched E.'s breasts, watched pornography, masturbated, ejaculated, and deposited semen on her face and toes. In addition, on Monday, he pulled down her underwear and licked her vagina. E. recalled that she watched American Idol on Monday and Tuesday. She denied that defendant touched her in any other manner or made her touch his body. E. did not tell Gutierrez that he inserted his penis into her vagina or anus.

FN8: E. defined a French kiss as "[when] he would use your tongue while kiss[ing] you" and "one person kisses another person with their mouth[s] open."

         At the preliminary hearing held on June 10, 2009, E. testified that defendant kissed her on the mouth, touched her breasts and vagina, made her look at pornographic videos and images on his computer, made her touch his penis, inserted his penis into her vagina for approximately two minutes four times, ejaculated, and deposited semen on her stomach and feet sometime in the fall during a Monday broadcast of American Idol. Identical acts also took place the following Tuesday and Thursday.

         On cross-examination, E. was shown footage of her MDIC interview and read transcripts of this interview and her preliminary hearing testimony. She often testified that she could neither remember her previous statements nor understand defense counsel's questions.

         Dr. Susan Napolitano, a psychologist with expertise in forensic interviews of children for sexual abuse, reviewed the videotape and transcript of E.'s MDIC interview. She opined that Gutierrez failed to comply with proper protocol during the information-gathering stage. In particular, Gutierrez seldom asked open-ended questions, often asked leading questions, raised "a barrage of, 'Anything else?' questions" after many of E.'s responses, and displayed confirmatory bias. Napolitano concluded that the interview "strayed so significantly" from protocol as to heighten the risk of creating false memories and obtaining inaccurate information.

         III. Jury Instructions

         The trial court, upon the request of both the prosecutor and defense counsel, gave the following modified CALCRIM No. 1191 (Evidence of Uncharged Sex Offense):

"The People presented evidence that the defendant committed the crime of possessing matter depicting minors engaging in or simulating sexual conduct that was not charged in this case.... [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit the crimes of sexual intercourse or sodomy with a child 10 years of age or younger and/or lewd acts upon a child, as charged. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crimes of sexual intercourse or sodomy with a child 10 years of age or younger and/or lewd acts upon a child. The People must still prove each charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."
Defense counsel did not object to this instruction.

         The prosecutor requested an instruction conforming with either CALCRIM No. 3500 (Unanimity)[fn9] or CALCRIM No. 3501 (Unanimity: When Generic Testimony of Offense is Presented).[fn10] The court did not provide a unanimity instruction.

         FN9: CALCRIM No. 3500 reads:

"The defendant is charged with <insert description of alleged offense> [in Count ] [sometime during the period of to ]. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."

         FN10: CALCRIM No. 3501 reads:

"The defendant is charged with <insert description[s] of alleged offense[s]> [in Count[s] ] sometime during the period of to . [¶] The People have presented evidence of more than one act to prove that the defendant committed (this/these) offense[s]. You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed [for each offense]; [¶] OR [¶] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved that the defendant committed at least the number of offenses charged]."

         IV. Closing Arguments

         The prosecutor remarked in closing:

"Ladies and Gentlemen, if you have listened to this evidence and you feel that [E.] told the truth and that the defendant penetrated her vagina at least one time, Count One is guilty. If you think that he penetrated her butt, her anus, her backside, Count Two, guilty. The People aren't saying it only happened three times. The People are just - at least three times. If you feel that he penetrated her a third time, anal, vaginal, if you believe the evidence shows this happened, that is Count Three. You don't have to agree - you all have to agree on the type of penetration. You don't have to agree on what happened, only that it happened and that it is the same event. So if you all agree on that, Count One, Count Two, and Count Three are guilty.
"As to Counts Four, Five and Six - if you believe that he touched her on her vagina one time, that's Count Four. If you believe he did it at least three times, that is Four, Five and Six, he is guilty. If you believe he ejaculated on her and had her rub - and had her touch his penis, that count[s]. If you believe that he kissed her or touched her in any other inappropriate manner and you all agree on the same facts, he did these things - once again, we're not saying it only happened three times, we're saying it happened at least three times. Because we all know [E.] told you it happened a lot over those three months, almost half the time she ever watched American Idol, and also during other times. All you have to do is agree that the same conduct occurred and the same conduct occurred more than once. [¶] You have plenty to pick from."
Defense counsel contended that E. offered inconsistent accounts of what took place and therefore lacked credibility. He also asserted that A.E. had E. allege molestation against defendant to allow her, her children, and E.E. to move out of state without defendant's interference.

People v. Diaz, 2013 Cal.App. Unpub. LEXIS 9301, 2-13 (Dec. 23, 2013).

         II. Discussion

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A. ...


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