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Gonzales v. Frauenheim

United States District Court, E.D. California

June 20, 2017

S. FRAUENHEIM, Warden, Respondent.



         Petitioner 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.


         Petitioner 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. Id.

         Petitioner 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[1] 25, 26.)

         On May 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.


         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[2]:

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.

         Defendant 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.

         Forensic 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.

         M.M. 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.

         At 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 and sisters.

         Defendant's 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).

         The 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.”

         Defendant acknowledged he understood his rights and Hanford Police Detective Cory Mathews began to question him.

         Defendant 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 copulated him.

         Defendant 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.

         On 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.

         Defense counsel did not object or take any further action in response to Mena's concern.

         Defendant's Plea Offer

         On 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 pretrial conference.

         On 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.

         On 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.

         On May 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 defendant's trial.

         On June 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.


         A. Jurisdiction

         Relief 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 the ...

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