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Simmons v. Lizarraga

United States District Court, E.D. California

July 12, 2017

TODD ALLEN SIMMONS, Petitioner,
v.
JOE LIZARRAGA, Warden, Mule Creek State Prison, [1] Respondent.

          MEMORANDUM DECISION

          JAMES K. SINGLETON, JR. Senior United States District Judge

         Todd Allen Simmons, a California state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Simmons is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Mule Creek State Prison. Respondent has answered, and Simmons has replied.

         I. BACKGROUND/PRIOR PROCEEDINGS

         On January 13, 2010, Simmons was charged by consolidated information with four counts of committing a lewd or lascivious act on a minor under the age of 14 years (Counts 1, 4-6); forcible sexual penetration (Count 2); forcible oral copulation (Count 3); and exhibiting harmful matter to a minor for purposes of seduction (Count 7). Counts 1-3 involved crimes committed in 1988 against D.C., his then-girlfriend's 6-year-old niece. Count 4 was committed between 1997 and 1998 against S.D., his then-girlfriend's 10- or 11-year old daughter. Counts 5-7 involved crimes committed in between 1999 and 2000 against D.R., his then-girlfriend's 6-year-old son. The information further alleged that Counts 1-6 involved multiple victims within the meaning of the One Strike Law[2] and that Counts 5 and 6 involved substantial sexual conduct. On September 8, 2010, Simmons proceeded to a jury trial. On direct appeal of his conviction, the California Court of Appeal recounted the following facts underlying the charges against Simmons and the evidence presented at trial:

Sexual Abuse of D.C. (Counts 1 through 3)
In January 1988, D.C. was six years old and periodically stayed the night at her grandmother's house in Palo Cedro, a small town east of Redding. The house had three bedrooms, one occupied by D.C.'s grandmother, another occupied by her aunt, Shirley, and a guest bedroom. D.C. stayed in the guest bedroom, as did several cousins who were also staying at the house. [Simmons], 20 years old at the time, worked for D.C.'s father and was dating Shirley. He routinely stayed the night at the house.
One night, [Simmons] came into the guest bedroom while D.C. was sleeping, pulled back the covers, and crawled into bed with her. D.C. was wearing a shirt and underwear. At first, she thought [Simmons] “just needed a place to sleep, like for whatever reason he couldn't sleep in the living room.” [Simmons] then started rubbing her legs with his hands, pushed up her shirt, and pulled down her underwear. [Simmons] told D.C. “how soft [her] skin was.” He then positioned his upper body on top of D.C., started rubbing the inside of her legs with his hands, and penetrated her vagina with his fingers. [Simmons] then “put his mouth on [D.C.'s] vagina[l area]” and told her that “he wanted [her] to do the same for him.” D.C., who had been quiet up to this point, “told him no and tried to get out from under him.” [Simmons] told her to “be quiet” and not to “tell anybody about what happened because he would hurt [her] parents.” [Simmons] then got out of bed, retrieved a towel from the bathroom, and cleaned up something on the bed. D.C. put her underwear on and went back to sleep.
That same month, D.C.'s mother, Terri C., became ill and was hospitalized for seven days.FN1 The day Terri C. was released from the hospital, D.C. told her mother that [Simmons] pulled her underwear down and touched her while she was staying at her grandmother's house. When Terri C. told her husband about D.C.'s accusation, he did not believe that [Simmons], one of his “best friends, ” had molested his daughter and told his wife not to talk to D.C. about the incident. About a year later, Terri C. took D.C. to child protective services for an evaluation and told an acquaintance who worked for the sheriff's department about the incident. However, no official report was made to law enforcement until 2009, after [Simmons] was arrested for the crimes committed against D.R., described below. When Terri C. saw the arrest on the local news, she called the Redding Police Department and reported that [Simmons] had also molested her daughter.
Based on these facts, [Simmons] was convicted of one count of committing a lewd or lascivious act on a minor under the age of 14 years, one count of forcible genital penetration, and one count of forcible oral copulation.
FN1. In order to safeguard the privacy of the victims in this case, we do not include the last names of their parents. Instead, each parent will be referred to by his or her first name and the first letter of the last name.
Sexual Abuse of S.D. (Count 4)
[Simmons] was married to W.D. for four months between 1997 and 1998. He lived with W.D. and her two daughters, S.D. and her older sister, in Shasta Lake City, a small town north of Redding. S.D. turned 11 years old during this time period.
One afternoon during the marriage, while W.D. was at work, [Simmons] was cooking dinner in the kitchen. S.D. “was just running in there and bothering him and just playing around.” [Simmons] unexpectedly pulled her pants and underwear down to her ankles. S.D., “thinking that [they] were playing, ” stepped out of her pants and underwear, ran to the bathroom, locked the door, and got into the shower. [Simmons] followed, unlocked the door, and came into the bathroom. S.D. then got out of the shower, ran back to the kitchen, and jumped up on the counter. [Simmons] again followed. S.D. sat on the counter with her legs hanging over the side. [Simmons] grabbed her knees, pushed them apart, and looked at her vagina. Smiling in a “[p]erverse” way, [Simmons] commented that she was “starting to grow hair.”
At this point, S.D. could hear the sound of her mother pulling into the driveway. S.D. went into the living room, found a pair of [Simmons'] boxers, and put them on. When W.D. asked S.D. why she was wearing [Simmons'] boxers, S.D. answered that she put them on after [Simmons] took her pants off. At this point, [Simmons] yelled S.D.'s name in a stern voice, “pretty much telling [her] to be quiet.” S.D. stopped talking. A few minutes later, W.D. called S.D. into her bedroom, where S.D. revealed what happened.
Based on these facts, [Simmons] was convicted of one count of committing a lewd or lascivious act on a minor under the age of 14 years.
Sexual Abuse of D.R. (Counts 5 through 7)
[Simmons] dated Debbie B. between 1999 and 2000. He lived with Debbie B. and her two sons, D.R. and C.R., in Redding for two or three months during this time period. D.R. was six years old. C.R. was four years old.
One day, while Debbie B. was out of the house, [Simmons] and D.R. were in the living room watching television. [Simmons] asked D.R. to go into his mother's bedroom. D.R. followed [Simmons] into the bedroom and sat on the bed. [Simmons] put on a pornographic movie depicting people having sex on a beach and then joined D.R. on the bed. [Simmons] told D.R. to take his clothes off, helped him do so, and started touching D.R.'s legs and penis, making the boy feel “[s]cared” and “[w]eird.” [Simmons] then started touching his own penis, moved D.R.'s hand over to his penis, and said: “Here, do this.” D.R. touched [Simmons'] penis for a few minutes while [Simmons] continued to touch D.R. [Simmons] then put D.R.'s penis in his mouth, asked D.R. if he “liked it, ” and told D.R. to continue touching him. A short time later, [Simmons] took his mouth off of D.R.'s penis, masturbated himself to ejaculation, and turned off the movie. After telling D.R. not to tell anybody about what happened, [Simmons] allowed D.R. to get dressed and return to the living room to watch television.
D.R. did not tell his mother about this incident for about two years. When he did so, he revealed only that [Simmons] showed him a pornographic movie. He did not tell her more because he “was still scared” and “didn't want to tell anybody about it.” Debbie B. took D.R. to the police station to report the incident. At the station, D.R. repeated what he had told his mother. At this point in time, [Simmons] was living in Arkansas. He moved there shortly after he stopped dating Debbie B. and lived there for six years.
A few years after D.R. first told his mother about the incident, he told her more of what [Simmons] had done to him. As Debbie B. explained, D.R. had taken a sexual education class at school and told her that he had a better understanding of what happened. This prompted Debbie B. to take D.R. back to the police station. D.R. told police that, in addition to playing a pornographic movie, [Simmons] also touched D.R. and had D.R. touch him. D.R. did not tell police about the oral copulation. Around this time period, D.R. began to receive counseling and felt better able to discuss everything that happened.
Ultimately, in 2009, D.R. told police the full extent of what [Simmons] had done to him. While at the police station, D.R. made a pretext call to [Simmons] in an effort to elicit admissions concerning the abuse. [Simmons] said that “he didn't remember doing it, ” but never “said the words, I did not do this.” Debbie B. also made a pretext call to [Simmons]. [Simmons] again claimed not to remember abusing D.R., but “[n]ever once did he deny it.”
Based on these facts, [Simmons] was convicted of two counts of committing a lewd or lascivious act on a minor under the age of 14 years and one count of exhibiting harmful matter to a minor for purposes of seduction.

People v. Simmons, 148 Cal.Rptr.3d 554, 557-60 (Cal.Ct.App. 2012).

         The jury additionally found true the special allegation that Counts 5 and 6 involved substantial sexual conduct and also found true the multiple victim circumstance allegations as to Counts 1-6. The trial court subsequently sentenced Simmons to a determinate imprisonment term of 20 years, calculated as the mid-term of 6 years on Count 1, 2, and 3, plus the 2-year mid- term on Count 7, to run consecutively to one another. The court further imposed an indeterminate term of 45 years to life imprisonment, calculated as 15 years to life for Counts 4-6.

         Through counsel, Simmons appealed his conviction, arguing that: 1) Counts 4 and 7 were barred by the statute of limitations as a matter of law; 2) the People presented insufficient evidence to prove that the crimes alleged in Counts 1-3 were committed before the statute of limitations expired; 3) the trial court prejudicially erred and violated his constitutional rights by failing to sua sponte instruct the jury to determine whether the crimes alleged in Counts 1-3 were committed before the statute of limitations expired; 4) trial counsel rendered ineffective assistance by failing to raise the statute of limitations with respect to Counts 1-3; 5) the trial court's imposition of full-term consecutive sentences on Counts 1 and 7 was not authorized by statute; 6) the trial court was not authorized to impose a sentence of 15 years to life on both Count 5 and Count 6; and 7) the trial court's imposition of consecutive sentences on Counts 4-6 must be vacated because the trial court erroneously believed consecutive terms were required by statute. Respondent conceded that the trial court was not authorized to impose full-term consecutive sentences on Counts 1 and 7 and was not authorized to impose a life sentence on both Count 5 and Count 6, but otherwise opposed the appeal. On September 27, 2012, the Court of Appeal issued a reasoned, published opinion accepting as correct Respondent's concessions and reversing Simmons' conviction on Count 7. Simmons, 148 Cal.Rptr.3d at 570. The appellate court affirmed the remaining convictions but vacated the sentences imposed to correct the sentencing errors to which Respondent conceded. Id. Simmons petitioned for review of his unsuccessful claims in the California Supreme Court, which was summarily denied on January 30, 2013.

         While his appeal was pending, Simmons filed in the superior court a pro se petition for habeas relief. In that petition, he argued that: 1) the trial court exceeded its jurisdiction when it imposed 15 year to life imprisonment sentences on both Counts 5 and 6; 2) he was coerced into relinquishing his right to testify and present a defense in his case by the court's erroneous evidentiary rulings; 3) the prosecutor committed misconduct by knowingly eliciting perjury and making factual misrepresentations during closing arguments; and 4) trial counsel rendered ineffective assistance. The superior court denied the petition on the merits in an unpublished, reasoned opinion issued on April 21, 2014. Simmons then raised the same claims in a pro se habeas petition filed in the Court of Appeal, which was denied without comment on May 29, 2014.. He further raised the claims in a pro se habeas petition filed in the Supreme Court, which was likewise summarily denied on September 10, 2014.

         While his state habeas petitions were pending, Simmons timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on March 2, 2014. See 28 U.S.C. § 2244(d)(1)(A). Simmons also moved to stay the federal proceedings pending exhaustion of four unexhausted claims, Docket No. 4, which the Court, through a previously-assigned magistrate judge, granted, Docket No. 6. After the state courts denied his petitions, the Court lifted the stay and directed Respondent to answer Simmons' Amended Petition (“Petition, ” Docket No. 8). Docket No. 9. Briefing is now complete, and the case has been reassigned to the undersigned judge for adjudication.

         II. GROUNDS/CLAIMS

         In his pro se Petition before this Court, Simmons argues that: 1) his trial counsel rendered ineffective assistance by failing to request an instruction on the statute of limitations; 2) the trial court erred in failing to sua sponte instruct the jury on the statute of limitations; 3) the trial court violated the Ex Post Facto Clause by improperly imposing concurrent 15-years-to-life sentences on Counts 5 and 6; 4) his constitutional rights to testify and to present a defense were violated by the trial court's preliminary ruling on the admissibility of certain impeachment evidence; 5) the ...


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