United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE.
is currently serving a sentence of 41 years plus 185
years-to-life in state prison for his conviction of multiple
sex offenses against a 10 year old child and domestic
violence against a cohabitant. He has filed the instant
habeas action challenging the conviction and sentence. As
discussed below, the Court finds the claims to be without
merit and recommends the petition be DENIED.
was convicted in the Kings County Superior Court on October
4, 2013, of: sexual penetration of M.M., a 10-year-old (Cal.
Pen. Code § 288.7(b)), (counts 1, 5, 7, 15, and 19);
forcible sexual penetration of M.M. (Cal. Penal Code §
269(a)(5)), (count 2); forcible oral copulation of M.M. (Cal.
Penal Code § 269(a)(4)), (counts 6, 8, 20); committing a
lewd act upon M.M. (Cal. Penal Code § 288(b)(1)),
(counts 11, 13, 17, 23); sexual intercourse with M.M. (Cal.
Penal Code § 288.7(a)), (count 21); rape of M.M. (Cal.
Penal Code § 269(a)(1)), (count 22); and domestic
violence against V.H., a cohabitant (Cal. Penal Code §
273.5(a)), (count 25). People v. Cervantes-Gonzalez,
2016 WL 402972, at *1 (Cal.Ct.App. Feb. 2, 2016). He was
sentenced to 41 years plus 185 years-to-life in state prison.
appealed to the California Court of Appeal, Fifth Appellate
District (“Fifth DCA”). The Fifth DCA affirmed
the judgment on February 2, 2016. Id. The appellate
court reversed the prison term on count 1 and remanded the
matter for resentencing on that count. Id. In all
other, respects the judgment was affirmed. Id.
Petitioner filed a petition for review in the California
Supreme Court, and the petition was summarily denied on April
27, 2016. (LD 25, 26.)
27, 2016, Petitioner filed the instant petition for writ of
habeas corpus in this Court. (Doc. No. 1.) Respondent filed
an answer on January 3, 2017. (Doc. No. 28.) Petitioner did
not file a traverse.
Court adopts the Statement of Facts in the Fifth DCA's
In March of 2012, defendant moved in with his girlfriend V.H.
and her three daughters, including 10-year-old M.M.
On July 31, 2012, V.H. discovered defendant in M.M.'s
bedroom, on top of M.M., with his pants and underwear pulled
down, kissing M.M.'s neck while his hand covered her
mouth. M.M. was naked from the waist down. V.H. yelled,
“What are you doing?” Defendant laughed as he
pulled up his pants and underwear.
V.H. attempted to run outside to get help but defendant
grabbed her by her hair, pulled her back inside the house,
pushed her up against a wall, and began to choke her. M.M.
asked defendant, “‘What are you
doing?'” Defendant let go. V.H. ran outside and
began to vomit blood.
admitted to V.H. he had digitally penetrated and orally
copulated M.M. He told V.H., “‘I used my mouth on
the little girl's [vagina], '” and claimed 10-
year-old M.M. had provoked him. He also stated,
“‘I'm a man and I am going to do what men do,
she wanted it.'” V.H. took M.M. and her other
daughters to a nearby clinic, but defendant began following
them. When he went inside a store to purchase beer, V.H.
rushed the children into the clinic where an ambulance
transported M.M. to the hospital.
nurse specialist Jennifer Pacheco performed a forensic
examination on M.M. She observed a faint tear toward the
bottom interior of M.M.'s vagina and noted M.M.'s
vagina appeared to be very tender.
was interviewed at the multidisciplinary interview center, a
facility where child victims of sexual abuse are interviewed
by trained specialists. During the interview, she described
multiple sexual offenses defendant committed against her
during the time he had been living with her family.
trial, M.M. testified defendant kissed her on her lips,
touched her breasts, digitally penetrated her, orally
copulated her, forcibly used her head and hand to touch his
penis, and sexually penetrated her. Defendant told M.M. if
she told V.H. about the incidents, he would kill her mother
Miranda Warning and Video-recorded Statements On July
31, 2012, defendant was arrested and questioned by police.
Officer Juan Hernandez of the Hanford Police Department, a
certified Spanish translator, read defendant his rights in
Spanish pursuant to Miranda v. Arizona (1966) 384
U.S. 436 (Miranda).
record provides the following English language translation of
Hernandez's Miranda admonition:
“Hernandez: You have the ... right to remain silent
without doing an (inaudible). [¶] ... [¶]
“Hernandez: (inaudible) You're here because you are
under arrest [¶] ... [¶]
“Hernandez: Everything you say can be against you in
court [¶] ... [¶]
“Hernandez: You have the right to have an attorney
present with you here when [¶] ... [¶]
“Hernandez: And if you can't ... get an attorney
there is an attorney they will give you. Having these rights
we are going to ask you a few questions.”
acknowledged he understood his rights and Hanford Police
Detective Cory Mathews began to question him.
had been living at V.H.'s apartment with her and her
three daughters for the past four months. The night before
the incident, he and V.H. had been drinking. Around 6:00 a.m.
the next morning, defendant claimed M.M. kissed defendant on
the mouth. She led him by the hand into the kitchen where she
kissed him again, put his hand on her breast, and orally
claimed he touched M.M.'s vagina and she touched his
penis. M.M. went to her room to lie down and defendant went
outside to smoke a cigarette. When he finished, he went into
M.M.'s room where he kissed her, touched and licked her
breasts, and orally copulated her. Defendant admitted he used
his exposed penis to touch M.M.'s vagina, but he denied
penetrating her. V.H. then walked in and caught defendant
with his pants down.
August 30, 2013, during defendant's trial, the court
addressed the parties regarding an issue raised by
defendant's Spanish language interpreter, Jim Mena. The
trial judge explained Mena approached him with a concern
about whether defendant had understood his rights. Based on
Mena's interpretation, it is unlikely defendant
understood his rights.
counsel did not object or take any further action in response
to Mena's concern.
August 22, 2012, defendant formally waived his right to a
preliminary hearing. Court-appointed defense counsel Laurence
Myer informed the trial court defendant waived his right to a
preliminary hearing to lock in an offer by the prosecutor of
30 years to life. The offer was to remain open until the
November 28, 2012, the first pretrial conference was held.
Court-appointed defense counsel Brian Gupton represented
defendant. Gupton informed the trial court the offer was 45
years to life. Defendant rejected the offer and the court
continued his trial.
April 12, 2013, a second pretrial conference was held.
Defendant was represented by Christopher Martens. Martens
advised the court a determinate offer was made in the
neighborhood of 30 years to life, but defendant had rejected
it. The trial readiness conference date was confirmed.
15, 2013, a substitution of counsel proceeding was held.
Defendant was represented by Justin Shimizu. During the
proceeding, the prosecutor stated the plea offer was 45 years
to life. Defendant did not respond to the offer. The court
rejected Shimizu's request for a continuance of
21, 2013, a third pretrial conference was held. Shimizu,
representing defendant at the conference, confirmed the
prosecutor made an offer of 30 years to life, but advised the
court defendant had rejected the offer. The matter was set
for trial readiness.
On August 26, 2013, a hearing was held pursuant to People
v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Defendant was represented by Christopher Martens at the time
of the hearing. Defendant sought new counsel on various
grounds, one of which was based on the claim he was initially
offered a plea deal of 30 years which was inexplicably
changed to 40 years.
The court asked Martens about the prosecution's offer of
30 years to life which was to remain open until the pretrial
conference. Martens advised the court defendant rejected the
offer “numerous times, ” and explained
“[t]here's never been an offer that's not been
a life sentence, and so [defendant] has been unwilling to
accept a plea that involved a life sentence so that's why
we're here at trial.” The court denied
defendant's motion and his trial commenced.
Cervantes-Gonzalez, 2016 WL 402972, at *1-3.
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, 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 n. 7 (2000). Petitioner asserts that he
suffered violations of his rights as guaranteed by the United
States Constitution. The challenged conviction arises out of