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Johnson v. McDowell

United States District Court, E.D. California

March 28, 2017

RICHARD STEVEN JOHNSON, Petitioner,
v.
NEIL McDOWELL, Warden Respondent.

          ORDER [1]

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.

         Introduction and Summary

         Petitioner was convicted of performing a lewd act on a child under the age of 14 by force or violence combined with a kidnapping which facilitated the sex crime. The jury could not come to a verdict on forcible rape and other charges. He was sentenced to 25 years to life.

         To a scientific certainty, petitioner committed some type of sex act with the victim on the day of the crime. This fact is not in dispute here, and does not depend upon the testimony of the victim. Rather, petitioner focuses his petition on the force or violence aspect and the kidnapping which was dependent on the victim's testimony. He asserts that the trial court's permitting the then seventeen year old victim/witness to testify turned away from himself and defense counsel, and the trial court's permitting the victim/witness to write her answers on cross-examination, which were then read by the judge, violated his right of confrontation guaranteed by the Sixth Amendment.[2] Petitioner believes his right to confront the witness was violated per se and, in any event, the trial court did not make required factual findings at an evidentiary hearing to allow the victim/witness to testify as she did.

         For the reasons given herein, the undersigned denies the petition.

          I. Factual Background

         The factual background is helpful to put the confrontation issue in perspective:

         The Crime

         The Prosecution's Case

         In February 2009, 13-year-old A.S. lived at home with her mother S.S. and some of her siblings. Her sister J.S. lived in a separate apartment with her boyfriend-defendant-and their baby daughter.

         On February 28, 2009, defendant asked A.S. to go to the store with him and buy tampons for J.S. He did not want to buy tampons because he was a man. He drove A.S. to Foods Co., where she bought tampons for defendant.

         Rather than taking her home, defendant drove A.S. to a place she did not know. The place was about 15 minutes from the store and had a parking lot and buildings that looked like warehouses. A.S. felt she could not escape because there was no one else in the area. After parking, defendant got out of the car, opened the passenger door, and ordered A.S. into the trunk. A.S. got out of the car and defendant pushed her into the trunk.

         Defendant drove the car for a “pretty long” time. She did not know where she was when defendant stopped and opened the trunk. The place looked like a forest and she could not get away. Defendant then sexually assaulted A.S. in the back seat of the car. He told A.S. not to tell anyone and dropped her off near her home. A.S. went to a friend's house before going home.

         S.S. became worried when A.S. did not return home after several hours. A.S. said she was going with defendant; S.S. tried to call her after a few hours but got no answer. S.S. knew something was wrong when A.S. finally returned home, as her daughter's clothes were torn and her hair was messed up. S.S. asked what was wrong; A.S. said, “Mom, he lied to me.” A.S. then told S.S. about the sexual assault, after which S.S. called the police.

         A.S. was taken to the hospital for a medical examination. An officer who contacted her at the hospital found A.S. was crying and upset. She said defendant picked her up at around 10:55 a.m., took her to Foods Co., and then later struck her and forced her into the trunk of the car. Defendant had sex with her even though she told him not to. He dropped her off at an elementary school rather than her home.

         J.S. testified she did not ask defendant to buy her tampons that day. He was supposed to pick up their daughter from S.S.'s home and return in time to take J.S. to work. J.S. called defendant when he did not return; defendant said he was fixing the car. She told an officer that defendant sounded “weird” and said he was out with A.S. when she talked to him on the phone that day.

         A.S. told the examining nurse practitioner that defendant sexually assaulted her around noon that day. Defendant also backhanded her in the face and grabbed her by the arm during the assault. The nurse saw A.S. had a laceration and bruise on her elbow as well as dried blood in her nose. The gynecological exam found tearing of the hymen indicating a penetrating injury with a large object; the injuries were consistent with sexual assault.

         A search of defendant's car revealed a Foods Co. receipt for the purchase of a box of tampons on February 28, 2009, at around 10:39 a.m. DNA taken from A.S.'s vagina and panties matched defendant's with probabilities of a random match ranging from one in 340 trillion to one in 130 quintillion. DNA from a swab taken from defendant's penis matched A.S.'s DNA with probabilities of a random match ranging from one in three million to one in 170 million. DNA swabs from a legal pad in the back seat of defendant's car, shorts found in the trunk, and from the trunk itself matched A.S.'s with probabilities of a random match ranging from one in 300 quadrillion to one in 9 quintillion.

         A.S. gave a special assault forensic evaluation interview on March 2, 2009. A recording of the interview was played to the jury.

         The Defense

         A defense investigator interviewed A.S. on March 2, 2009. A.S. told the investigator defendant tried to kiss her. She denied being in the trunk of the car, and said sex may or may not have happened.

         A nurse testifying as an expert in sexual assault examinations testified that an examination cannot determine whether the sex was consensual. She opined that the findings in this case could be consistent with consensual sex.

         People v. Johnson, 2015 WL 365817 at * 1-2 (Cal.App. 2015).

         II. AE ...


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