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Fernandez v. Frauenhein

United States District Court, N.D. California

April 13, 2017

S. FRAUENHEIN, Respondent.


          EDWARD M. CHEN, United States District Judge


         Jose Manuel Fernandez filed this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his state court conviction for several sex offenses against a minor. For the reasons discussed below, the Court denies the petition.


         The reporting victim is referred to in the California Court of Appeal opinion as B. Doe and Doe. Miss Doe lived in Gilroy with her mother and her four siblings. Also living in the household was her stepfather, petitioner Jose Manuel Fernandez. At the time of his arrest in April 2011, Mr. Fernandez was 26 years old. At that same time, Miss Doe was 11 years old and nearing the end of sixth grade. The California Court of Appeal described the evidence:

According to Doe's friend Desiree, in fourth grade Doe came to school with three hickeys on her neck and told Desiree that defendant gave them to her. Two years later, in early 2011, Doe reportedly informed Desiree in the school locker room that defendant would sexually touch Doe. Specifically, Doe told Desiree that defendant would touch Doe's “boobs” and vagina, and would grab her hand and put it on his penis.
On April 18, 2011, one of Doe's brothers mentioned to a social worker at school that defendant was allegedly having sex with Doe. The next day a social worker contacted Doe at school and Doe disclosed that defendant had molested her. The social worker then contacted the police, who took Doe to a police station in Gilroy for an interview.
Before the police interviewed Doe on April 19, they convinced her to participate in a “pretext call, ” described by police detective Jason Smith as a monitored and recorded phone call between the victim and a suspect where the police provide guidance regarding questions to ask. The pretext call between Doe and defendant was in Spanish.3 Doe stated in the call that she told a friend defendant was touching her. When Doe mentioned possibly telling her mother, defendant said “[n]o, honey ... you guys will get me in trouble” and told her “they can put me in jail.” Defendant promised that “I'm not going to touch you anymore or anything” and asked her to tell her friend that she was lying or else the friend was going to “get me in trouble, and then who's going to take care of everybody?”
Footnote 3: Although they were marked as evidence but never admitted, we rely on the English language translations of the pretext call and defendant's interrogation. We will discuss defendant's contentions related to the trial court's jury instructions on this point.
Detective Smith then interviewed Doe in English. Doe said defendant never touched her chest sexually but that when they were together in the family's house he would try to kiss her, touch her “private part, ” and grab her hand and make her “do stuff” to his penis. Doe told the detective she did not want to “touch it” and “always tried like to pull away....” Doe said she touched his penis three to four times and that he touched her private part four or five times. When asked when this would happen, Doe responded, “[l]ike at th[e] same time when he like, do all that other stuff.” Doe explained that defendant would “just like start[ ] hugging me ... and then that's when he starts doing all the rest.” Later she said “he would hold me and then he would like start doing himself too, he would, like, yeah.” Doe indicated that the first incident of sexual touching occurred in second grade. The most recent incident had happened the previous month, when defendant pulled Doe's hair to make her stand up from her bed and then made her “get on top of him” as he lay on the couch. Regarding the frequency of sexual touching, Detective Smith asked her if it happened “[o]nce a month, once a year?, ” and Doe ambiguously responded “[y]eah, once, once or twice.”
During Doe's interview, defendant arrived at the police station and was detained. Defendant was given a Miranda advisement (Miranda v. Arizona (1966) 384 U.S. 436) and was interrogated by Detective Smith and Officer Jesus Cortez, who acted both as a Spanish translator and as an interrogator. When asked about his interactions with Doe, defendant said he would sometimes hug her but that he did not “do it with bad intentions.” Later defendant admitted touching Doe's “butt” on one occasion and that he might have also accidentally touched her vagina. After further questioning, defendant eventually said Doe touched his penis approximately three times over his pants and twice skin-to-skin. Defendant described that he would take her hand and place it on his penis. He recalled that one such incident occurred in approximately February 2011.
Defendant also admitted touching Doe's vagina both over her clothes and skin-to-skin but said it “wasn't more than three times.” Defendant recalled an incident in December 2010 when he touched Doe's vagina outside her clothes for three or four seconds and rubbed up and down. He recounted another incident in January 2011 where he touched Doe's vagina over her clothes in her bedroom. A third touching over clothing occurred one night in the living room while they were standing. Defendant said that he touched Doe's vagina at least one time skin-to-skin while they were standing in his bedroom.
At the end of the interrogation, Detective Smith told defendant that he would give him the opportunity to write Doe an apology letter. Defendant drafted two handwritten letters in Spanish, one to the mother and one to Doe. In the letter to Doe, he asked her to “forgive me for the bad that I was doing to you” and promised “it will never happen again.”4 In the letter to the mother, defendant said he “made a mistake with what I did with [Doe] but it never went through my mind to do anything to her, ” and promised the mother “[n]ever again will it happen again.” Defendant was taken into custody after the interrogation.
Footnote 4: We rely on the English language translations of the letters that were admitted into evidence at trial.
On April 20, Detective Smith and Detective Wes Stanford interviewed Doe's mother about her daughter's accusations. The mother did not mention the possibility of Doe recanting and also said nothing about Doe's propensity to make up stories. Doe's mother asked if they could drop the charges against defendant and expressed concern about her ability to pay bills without defendant in the home. The detectives offered to let the mother watch the recordings of Doe's interview and defendant's interrogation but she chose not to. . . .
In May 2011, Doe attended an overnight science camp with her friends Desiree and Daisy. Daisy recalled Doe talking at night in the cabin where the girls were staying about “getting raped” by defendant and that this conduct had been going on since the third or fourth grade. Daisy said Doe mentioned defendant “[g]rabbing her real hard and making her do stuff, ” and touching Doe's vagina “all the time when her mom would leave to go to her work, which was face painting.” According to Desiree, Doe told the girls that when her mother would leave defendant at home with Doe he would touch her sexually, consistent with Doe's statements to Desiree in early 2011 in the locker room.
Several witnesses testified at trial for the prosecution. Doe recanted her allegations against defendant at trial. She admitted that she reported defendant's alleged actions to the police, Desiree, and Daisy, but maintained that she was lying during each of those disclosures. On cross-examination by defense counsel, Doe confirmed she had also recanted at the preliminary hearing. When asked why she would make up these allegations, Doe claimed that she did so because defendant was too strict and did not allow her to go to parties with her friends. In addition to recounting Doe's disclosures regarding defendant, Desiree testified that Doe's mother approached her during a field trip in November 2011 and told her that the accusations against defendant were untrue.
The prosecution played video recordings of Doe's interview, the pretext call, and defendant's interrogation. The jury was provided with a transcript of each of the recordings. Before playing the recording of Doe's interview, the trial court admonished the jury: “Ladies and gentlemen, you're going to be receiving a copy of the transcript. It is not part of the transcript, that is not part of the evidence in the case. It is being provided to you to assist you in following along with the DVD that is the evidence in the case.”
Unlike Doe's interview, the pretext call was in Spanish and the transcript contained a transcription in Spanish as well as a side-by-side translation into English. Gilroy Police Officer Eustaquio Rodriguez, a fluent Spanish speaker, testified that the translation was accurate. Before playing the pretext call recording, the court told the jury: “Ladies and gentlemen, the same admonition I gave you previously, the transcript is not evidence but is to assist you in listening to the tape.” According to the prosecutor, defense counsel received a copy of the pretext call transcript “previously.”
Like the pretext call transcript, the transcript of defendant's interrogation (which took place in English and Spanish) included both the Spanish transcription and an English translation. Officer Cortez, who assisted in the interrogation, testified to the accuracy of the translation. Before it was played the court informed the jury: “The same admonition, ladies and gentlemen.” The transcripts were collected from the jury after the recordings were played and, although marked as exhibits, were never admitted as evidence.
Defense witnesses included Doe's mother, who testified that Doe had a tendency to make up stories and that Doe had recanted her allegations against defendant during a walk with her on the evening of April 19. The mother also said she never saw any hickeys on Doe's neck and that it was “very rare” for defendant to be home alone with the children. She stated neither she nor Doe ever received an apology letter from defendant. Two of defendant's relatives testified to defendant's good character.
Defendant also testified. He stated that he had a second grade education. He claimed he was referring to an innocent, non-sexual interaction with Doe during the pretext call. Regarding the interrogation, defendant maintained that the officers had told him that if he was unsure of an answer he “should say yes.” He admitted pulling Doe's hair to get her out of bed in March 2011. When confronted on cross-examination with his statements during the interrogation, defendant confirmed he made the statements attributed to him but argued none of those statements was true. Similarly, defendant confirmed he had rubbed his crotch during the interrogation to simulate what he did to Doe but said that he never actually rubbed Doe in that way.
Carl Lewis testified for the prosecution as an expert in Child Sexual Abuse Accommodation Syndrome (CSAAS), which he described as a series of conditions and behaviors exhibited by children who are victims of child molestation that might seem unexpected. Lewis stated the behavioral categories predicted by CSAAS are: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicted, or unconvincing disclosure of abuse; and (5) retraction.

People v. Fernandez, California Court of Appeal No. H038618, opinion filed February 18, 2015 (“Cal.Ct.App. Opinion”) at 2-7.

         Following the jury trial in Santa Clara County Superior Court, Mr. Fernandez was convicted of four counts of committing lewd or lascivious acts on a child (see Cal. Penal Code § 288(a)), and seven counts of committing lewd or lascivious acts on a child by force, violence, duress, menace, or fear of immediate and unlawful bodily injury (see Cal. Penal Code § 288(b)(1)). The trial court sentenced Mr. Fernandez to a total of 30 years in state prison.

         Mr. Fernandez appealed. The California Court of Appeal affirmed his conviction in February 2015 in a reasoned decision. Docket No. 13-7 at 3. The California Supreme Court summarily denied his petition for review in May 2015. Id. at 75.

         Mr. Fernandez then filed his federal petition for writ of habeas corpus. He asserted three claims: (1) his right to due process was violated because the evidence was insufficient to support one of the convictions under California Penal Code § 288(a); (2) his right to due process was violated because the evidence was insufficient to support six of the seven counts under California Penal Code § 288(b)(1); and (3) his rights to due process and trial by jury were violated when the jury was instructed that two Spanish-language recordings were the evidence and the accompanying transcripts were only to assist the jurors. The Court ordered Respondent to show cause why the petition should not be granted. Respondent has filed an answer to the petition. Mr. Fernandez has not filed a traverse, and the deadline by which to do so has long passed. The matter is now ready for decision.


         This Court has subject matter jurisdiction over this action for a writ of habeas corpus under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the conviction and sentence of a person convicted in Santa Clara County, California, which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).


         This Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

         The Antiterrorism And Effective Death Penalty Act of 1996 (“AEDPA”) amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the 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).

         “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 (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

         “Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. “[A] federal habeas court may not issue the writ simply because that 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. “A federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was 'objectively unreasonable.'” Id. at 409.

         The state-court decision to which § 2254(d) applies is the “last reasoned decision” of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). “When there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst, 501 U.S. at 803. The presumption that a later summary denial rests on the same reasoning as the earlier reasoned decision is a rebuttable presumption and can be overcome by strong evidence. Kernan v. Hinojosa, 136 S.Ct. 1603, 1605-06 (2016). Although Ylst was a procedural default case, the “look through” rule announced there has been extended beyond the context of procedural default and applies to decisions on the merits. Barker, 423 F.3d at 1092 n.3. In other words, when the last reasoned decision is a decision on the merits, the habeas court can look through later summary denials to apply § 2254(d) to the last reasoned decision.

         Section 2254(d) generally applies to unexplained as well as reasoned decisions. “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 state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). When the state court has denied a federal constitutional claim on the merits without explanation, the federal habeas court “must determine what arguments or theories supported or . . . 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 U.S. Supreme] Court.” Id. at 102.

         V. DISCUSSION

         A. Sufficiency of the Evidence - § 288(a) Conviction Based on the Hickeys

         Mr. Fernandez challenges the sufficiency of the evidence to support one of his convictions under California Penal Code § 288(a). Specifically, he contends that the conviction “based solely on Desiree's claim that two years ago Doe had told her that [Mr. Fernandez] had given her hickeys” violated his right to due process. Docket No. 1 at 5. Mr. Fernandez argues that the testimony was not substantial evidence because it was uncorroborated and relayed information that Desiree had heard two years before trial. Docket No. 1-1 at 37. In Mr. Fernandez's view, “Desiree's memory of a conversation two years ago should not be deemed to have the trustworthiness of a child who had actually experienced such an act. This is especially true here in that Doe claimed to have been asleep at the time and there is nothing in Desiree's story confirming what Doe actually knew.” Id; see also Docket No. 1-1 at 8-9.

         The California Court of Appeal rejected Mr. Fernandez's challenge to the sufficiency of the evidence to support this conviction. The appellate court identified the correct legal standard for reviewing the sufficiency of the evidence to support a conviction, i.e., a conviction will be affirmed if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Cal.Ct.App. Opinion at 11 (citations and internal quotation marks omitted). The appellate court also noted that the reviewing court does not reweigh the evidence or witness credibility, and that the testimony of a single witness is sufficient to uphold a judgment. Id. With regard to the § 288(a) conviction based on the hickeys, the California Court of Appeal explained:

Desiree testified she saw three hickeys on Doe's neck at school one day during fourth grade and that Doe told Desiree, “my step dad gave me a hickey like when I was asleep.” The jury could reasonably credit Desiree's testimony about what Doe told her over the contrary testimony by Doe's mother, given Desiree's comparative impartiality and the lack of evidence that she had any motivation to testify falsely. In contrast, Doe's mother acknowledged at trial that she had asked the detectives soon after defendant's arrest if she could not press charges and had also expressed concern to them about not being able to pay bills without defendant's help. The reliability of Desiree's testimony was further enhanced by the fact that she was not merely backing up her friend Doe, but actually contradicting Doe's recanted version of events. A reasonable jury could therefore conclude that Doe was telling the truth in her out-of-court statement to Desiree that defendant gave her hickeys.

Cal.Ct.App. Opinion at 14-15.

         As the last reasoned decision from a state court, the California Court of Appeal's decision is the decision to which § 2254(d) is applied. See Ylst, 501 U.S. at 803-04; Barker, 423 F.3d at 1091-92. Mr. Fernandez is entitled to habeas relief only if the California Court of Appeal's decision was contrary to, or an unreasonable application of, clearly established federal law from the U.S. Supreme Court, or was based on an unreasonable determination of the facts in light of the evidence presented.

         The Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). A court reviewing a conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt, but rather determines whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may a court conclude that the evidence is insufficient. See Id. at 324. The “prosecution need not affirmatively 'rule out every hypothesis except that of guilt, '” and the reviewing federal court “'faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'” Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326).

         “Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors 'draw reasonable inferences from basic facts to ultimate facts.'” Coleman v. Johnson, 132 S.Ct. 2060, 2064 (2012) (per curiam) (citing Jackson, 443 U.S. at 319). “[O]n habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge” unless “the state court decision was objectively unreasonable.” Id. at 2062 (internal quotation marks omitted).

         The Jackson standard is applied to a crime as that crime is defined by state law. Jackson, 443 U.S. at 324 n. 16. California Penal Code § 288(a) makes it a felony to “willfully and lewdly commit[] any lewd or lascivious act. . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.”[1]

         Here, Mr. Fernandez does not contend that giving a child a hickey would not qualify as a violation of § 288(a), and instead contends that Desiree's testimony was simply too little to amount to sufficient evidence to prove the event occurred. The California Court of Appeal's rejection of Mr. Fernandez's claim was not an unreasonable application of the Jackson standard.

         There was conflicting evidence at trial about the hickeys. On the one hand, Desiree testified that Miss Doe showed her several hickeys on Miss Doe's neck and stated that Mr. Fernandez had caused those hickeys. Desiree, who was then 12 years old and in seventh grade, gave the following testimony about the hickeys:

Q. . . . When you were in the fourth grade, did she [Miss Doe] ever talk about her stepfather doing something to her?
A. Giving her a hickey.
Q. What did she tell you exactly? What do you recall her telling you ...

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