United States District Court, E.D. California
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.
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.
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. 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
reasons given herein, the undersigned denies the petition.
factual background is helpful to put the confrontation issue
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
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.
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
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
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.
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.
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.
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.
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.
gave a special assault forensic evaluation interview on March
2, 2009. A recording of the interview was played to the jury.
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
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.
v. Johnson, 2015 WL 365817 at * 1-2 (Cal.App. 2015).