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Godwin v. Davey

United States District Court, S.D. California

November 21, 2017

JEREMY JAMES GODWIN, Petitioner,
v.
DAVID DAVEY, Warden Respondent.

          REPORT AND RECOMMENDATION RE PETITIONERS WRIT OF HABEAS CORPUS

          Hon. Karen S. Crawford United Stales Magistrate Judge

         Petitioner Jeremy J. Godwin, a state prisoner represented by counsel Marilee Marshall, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in California Superior Court[1] of two counts of aggravated sexual assault of a child with oral copulation, four counts of forcible lewd act on a child, and one count of child molestation with a prior conviction. He raises seven claims for relief asserting, inter alia, violations of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights.

         This Court has reviewed the Petition, Respondent's Answer, Traverse, and accompanying lodgments and exhibits. For the reasons discussed in greater detail below, the Court recommends the Petition for a Writ of Habeas Corpus be DENIED.

         PROCEDURAL BACKGROUND

         Petitioner, Jeremey J. Godwin, is in the custody of respondent based upon a July 15, 2013 judgment in California Superior Court of Imperial County in which a jury convicted him of two counts of aggravated sexual assault of a child with oral copulation, four counts of forcible lewd act on a child, and one count of child molestation with a prior conviction. Petitioner was sentenced to 334 years to life. [Doc. No. 10-52, at p. 7124].

         Petitioner appealed the judgment of conviction in the California Court of Appeal on November 1, 2013.[2] The conviction was affirmed, but the sentence was modified to dismiss the habitual sex offender sentence. [Doc. No. 10-75]. Petitioner sought further direct review of the decision on appeal by the California Supreme Court.[3] On August 26, 2015, the petition was denied. [Doc. No. 10-77].

         On October 26, 2016, petitioner filed a petition for a writ of habeas corpus in the Southern District of California. [Doc. No. 1].

         FACTUAL BACKGROUND

         The California Court of Appeals' unpublished opinion sets forth a summary of facts for this case. [Doc. 10-8, at 2-10]. This Court gives deference to the state court's findings of fact and presumes them to be correct; petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992). This Court has conducted an independent review of the trial record and confirms the Court of Appeals' factual findings comport with the record. The following facts are taken from the California Court of Appeals' Opinion and Decision affirming the judgment in the trial court:

Jeremy Godwin [was convicted] of various sex offenses arising from his molestation of Jane Doe. ...
Doe, age 20 at the time of trial, testified about numerous acts of molestation committed by her father (defendant) that started when she was a small child and continued until she was 13 years old.
Doe recalled an incident when she was "really small" when she and defendant were riding in a vehicle in the desert and defendant placed his hand between her legs and was "playing with [her] vagina . . . through [her] clothes." Consistent with this memory, Doe's mother testified that when Doe was five years old, she told her mother that defendant had been touching her "down there, " pointing to her vaginal area. The matter was investigated; defendant was arrested; and in 1998 he pled guilty to committing a lewd act against Doe.
Because of his 1998 lewd act conviction, defendant was removed from the family for four years; the family received counseling; and defendant reunited with the family in about January 2002. Doe's mother testified she did not divorce defendant at the time because "[t]here was doubt, " explaining that defendant told her he did not commit the molestation, "everything was just misconstrued, " and he only pled guilty so she could be reunited with their children.
Doe recalled another incident that occurred when she was about nine years old and her brother was about three or four years old. On this occasion, Doe and her brother were not wearing clothes, she was on top of her brother, and her father was with them in the room. She did not remember further details, except that her brother's penis and her vagina were somehow "involved." The remaining acts of molestation described by Doe occurred at the family's home on Cedar Avenue where they moved in July of 2002 when Doe was almost 10 years old, and at the family's home on Walnut Avenue where they moved in November 2003 when Doe was 11 years old.
During an incident at the Cedar residence, Doe woke up in the middle of the night on the couch, and defendant was "making out" with her, with his tongue in her mouth and his arms around her. The incident made her feel "uncomfortable." On another occasion, defendant performed oral sex by putting his mouth on Doe's vagina.
During an incident at the Walnut residence, Doe woke up on her parents' bed, and the defendant was on top of her with is penis in her vagina. Doe felt "very violated and very upset." On another occasion he had her sit on top of a scanner and he scanned her vagina. On several occasions he woke her up so she could watch pornography with him. She felt "very uncomfortable" watching the pornographic movies, but felt "too afraid to say no."
Also, on multiple occasions at the Walnut residence defendant had Doe give him "blow jobs" when they were in his bathroom. He tried to ejaculate in her mouth; "usually, it ended up in a towel or some article of clothing"; and on one occasion he ejaculated "out on [her] chest." This conduct made Doe feel "gross, " "very uncomfortable, " and disgusted.
During another incident defendant brought a dog into his bedroom and told Doe to "get down on all fours" because he wanted to "put the dog on top of [her] and put the dog[']s penis in... somewhere." Doe refused, and defendant instead got "on all fours" and had the dog get on top of him. Doe felt "really grossed out."
Doe recalled several other incidents of sexual molestation at the Walnut residence, including an incident in defendant's bedroom when he put vibrators on her vagina; another incident in the bedroom when he put his finger in her vagina; and several incidents in the bedroom and living room when he would masturbate in front of her. Doe testified she did not know whether defendant molested her "every week or every month" while they lived at the Walnut residence, but she knew it happened "at least a few times in one month, and few can be anywhere from two to ten times."
Regarding her relationship with her father, Doe testified he was the primary caregiver for her and her brother. Her mother was frequently gone from home at work and they were not emotionally close. When Doe was small, she and defendant were "very close, " and she loved him and was like a friend to her. As Doe got older, she did not feel as close to him; she did not know how to feel about him; and she knew that what was occurring was not right.
Doe did not recall defendant using physical discipline with her, but she testified she was afraid of him when she was growing up because she was not "sure what he could do." She remembered an incident in which defendant tied her and her mother to the bed in his bedroom. Her father and mother engaged in loud arguments; there was a lot of shouting, slamming of doors, and slamming of hands on tables; and defendant was sometimes violent. For example, on one occasion he held her mother in a headlock and on another threw a chair. During the headlock incident, her mother yelled that Doe should call 911 an when Doe went to get the phone, defendant threw the phone.
Doe's mother confirmed that she was often gone from home at work, including at night, and defendant took care of the children when she was not at home. Consistent with Doe's testimony, Doe's mother testified there was always a lot of pushing, shoving, throwing of objects, and screaming between her and defendant, and during the incident when she asked Doe to call 911 defendant pulled the phone out of the wall and threw it.
Doe testified she did not know what to do about the molestation because defendant was her father and she had been taught to respect her elders; she had never gone against him because she was afraid of him; she did not know "how to go about confronting the issue"; and she was afraid to say anything to other adults because they knew her father and she was afraid there would be a "back lash" against her. She thought if she told someone, her father would find out and he would get in trouble or do something to hurt her, and people would think differently of her and not believe her.
When Doe was 14 years old, she finally told her father she would no longer engage in the sexual activity. This occurred when he asked her to go with him into the bedroom, which usually meant "something would happen"; she did not want to go; to try to coax her into the bedroom he grabbed her cat; she asked him for her cat back and hit him in the back; and she then told him she was not going to "do anything anymore" and she was "done with that kind of thing." After this, defendant stopped molesting her. Doe grew closer to her father again and felt safer, but in the back of her mind she worried and was afraid the molestation would resume. She and her father did not talk about the molestation but "just swept it under the rug and pretended" it was not there.
In 2008 or 2009, when Doe was about 16 or 17 years old, her mother moved out of the family home because her parents were getting divorced. Doe was allowed to choose which parent to live with, and she chose to live with defendant. Doe testified she was "very confused" about what she should do; she "just wanted to survive and be safe"; and she elected to live with defendant because the molestation had stopped and defendant was more financially secure than her mother.
However, there was one more incident in September 2009. While Doe and defendant were in the car in the desert, he masturbated in front of her. Doe "looked away and pretended [she] wasn't there and tried to just get away from it mentally." She felt "upset and disgusted." Because of this incident and because she and her father were arguing a lot about her behavior, in October 2009 she moved in with her mother. As Doe was growing up, she told a few people about the molestation, including her cousin, her high school boyfriend, and two close friends. Doe's cousin and boyfriend testified to confirm the disclosure. In 2010, near the time when she was graduating from high school, Doe made a full disclosure during a long conversation with her high school boyfriend. During this time period she refused to continue visiting with her father, and after an emotional confrontation with her parents during a child custody exchange in a parking lot, she asked her mother to contact the authorities so she could talk to them.
Doe testified she felt relieved after finally disclosing the molestation; when she disclosed she was not living with her father and felt safer; but she still felt vulnerable because if her father "really wanted to do something, he would find a way." A child sexual assault expert testified that delayed disclosure of sexual abuse is a typical disclosure pattern for children. Regarding the long-term psychological impact of the molestation, Doe testified, "I have tried to forget a lot of the things about what has happened ... because it makes me feel a lot of things that I don't want to feel." She explained: "[I]t [is] very hard for me to feel kind of normal, and I feel more like there [are] some aspects of my life that aren't going to be normal, like my sex life with whoever I get married to is not going to be normal and that I am always going to have little triggers that make me remember what happened and stress me out or make me cry. I find it hard to actually speak with counselors about this kind of thing and people in general, but more so [with] counselors and therapists. I feel like I am very much going to have a lot of emotional and maybe psychological damage for the rest of my life from all of this."
Defense
The defense presented testimony from several witnesses (including a sheriff's deputy, a social worker, and defendant's mother, brother, and girlfriend) who had contact with Doe during her childhood. These witnesses variously testified that Doe never mentioned, and on occasion denied, any further molestation after defendant's 1998 conviction, and they did not observe anything to suggest defendant was continuing to molest Doe. The defense also called a psychiatrist who testified that unsubstantiated reports of child sexual abuse are more likely to occur when there are child custody disputes.

         STANDARD OF REVIEW

         Federal habeas corpus relief is available only to those who are in custody in violation of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). "A federal court may not issue the writ on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984). "[A] mere error of state law is not a denial of due process." Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982) (internal quotations omitted).

         This Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 327 (1997). AEDPA imposes a "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (internal citations and quotations omitted). Under AEDPA, a habeas petition "on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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)(1)-(2). For purposes of § 2254(d)(1), "clearly established Federal law" means "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Therefore, a lack of controlling Supreme Court precedent can preclude habeas corpus relief. Wright v. Van Patten, 552 U.S. 120, 126 (2008).

         The AEDPA standard is highly deferential and "difficult to meet." Harrington v. Richter, 562 U.S. 86, 100 (2011). For mixed questions of fact and law, federal habeas relief may be granted under the "contrary to" clause of § 2254 if the state court applied a rule different from the governing law set forth in Supreme Court cases, or decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002). The focus of inquiry under the "contrary to" clause is "whether the state court's application of clearly established federal law is objectively unreasonable." Id. "[A]n unreasonable application is different from an incorrect one." Id. In other words, federal habeas relief cannot be granted simply because a reviewing court concludes based on its own independent judgment that the state court decision is erroneous or incorrect. Id. Habeas relief is only available under § 2254(d)(1) "where there is no possibility fair-minded jurists could disagree that the state court's decision conflicts" with Supreme Court precedents. Harrington, 562 U.S. at 101.

         Where there is no reasoned decision from the state's highest court, a federal court "looks through" to the "last reasoned state-court opinion" and presumes it provides the basis for the higher court's denial of a claim or claims. Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the state court does not provide a reason for its decision, the federal court must conduct an independent review of the record to determine whether the state court's decision is objectively unreasonable. Crittenden v. Ayers, 624 F.3d 943, 947 (9th Cir. 2010). To be objectively reasonable, a state court's decision need not specifically cite Supreme Court precedent. Early v. Packer, 537 U.S. 3, 8 (2002). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent], " the state court's decision will not be "contrary to clearly established Federal law." Id.

         DISCUSSION

         Godwin raises eight claims in his Petition: (1) insufficient evidence to support a conviction of forcible sex acts; (2) insufficient evidence to support a conviction for aggravated sexual assault because the complaining witness could not recall one of the alleged sexual misconducts; (3) violation of Fifth and Fourteenth amendment due process rights in the admission of a prior conviction; (4) violation of due process rights under the Fifth, Sixth, and Fourteenth Amendments to a fair trial because a witness twice stated the petitioner fit the profile of a child molester; (5) improper denial of a request for release of jury information; (6) improper consideration of an un-Mirandized statement during sentencing; (7) imposition of $400, 000 in damages when the complaining witness did not ask for restitution; and, (8) cumulative error because of claims one through seven. [Doc. No. l, atpp. 6-11; at pp. 9-22].

         Respondent argues the following: claims one, two, five, seven, and eight are meritless; claim three is precluded; claim four has no basis for relief, or, in the alternative, constitutes harmless error; and, claim six is unsupported by precedent and thus harmless error. [Doc. No. 9-1, at pp. 13-49].

         A. Grounds One and Two Alleging Insufficiency of Evidence

         Petitioner argues in Ground One that there was insufficient evidence for a conviction of forcible sex acts because no evidence supported coercive or forceful conduct. [Doc. No. 1, at p. 6]. Specifically, he contends there was insufficient evidence for the jury to make a finding of duress, which is defined as "the use of a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to do [or submit to] something that he or she would not otherwise do [or submit to]." Id.; See also People v. Soto, 51 Cal.4th 229, 246, n. 9 (2011).

         Petitioner argues in Ground Two that there was insufficient evidence to support a guilty verdict of aggravated sexual assault because the complaining witness was unable to independently recall the incidence of oral copulation. [Doc. No. 1, at p. 11].

         1. Legal Standard

         The California Supreme Court denied petitioner's request for appeal. [Doc. No. 10-77]. Therefore, this Court must "look through" the silent denial to the appellate court's reasoning to determine the grounds for relief. Ylst, 501 U.S. 804, n.3 (1991).

         The Due Process Clause of the Fourteenth Amendment protects defendants from convictions "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he was charged." In re Winship, 397 U.S. 358, 364 (1970). During habeas review, a petitioner alleging insufficiency of evidence may obtain relief only if "it is found upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979). "[T]he relevant question is 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." Id. at 319. Reversal on an insufficiency of evidence claim is, in essence, a "determination that the government's case against the defendant was so lacking that the trial court should have entered a judgment of acquittal." McDaniel v. Brown, 558 U.S. 120, 131 (2010) (quoting Lockhart v. Nelson, 488 U.S. 33, 39 (1988)) (internal citations omitted).

         The jury bears the burden of deciding "what conclusions should be drawn from evidence admitted at trial" and a habeas court can set aside a jury verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). "The reviewing court must respect the exclusive province of the fact finder to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts" by assuming that the jury resolved all conflicts in support of the verdict. United States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). If the record supports competing inferences, the court "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." Jackson, 443 U.S. at 326. The court applies the standard to the applicable state law that defines the elements of the crime. Id. at 324 n.16; see also Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc).

         A further "layer of deference" exists under AEDPA. Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005) (as amended). Habeas relief is not warranted unless "the state court's application of the Jackson standard [wasj objectively unreasonable." Id. at 1274-75 n. 13 (internal citations omitted); see also Cavazos, 565 U.S. at 2 ("[A] federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was 'objectively unreasonable.'") (internal citations omitted).

         2. Analysis of Petitioner's Contention of Insufficient Evidence to Support A Jury Finding of Duress

         The California Court of Appeal neither applied a standard contrary to Supreme Court precedent nor failed to identify the jury's conclusion as one with which no rational trier of fact could have agreed. Cavazos, 565 U.S. at 2.

         California Penal Code Section 288(a) sets out the crime for lewd and lascivious acts, while subsection (b) provides additional penalties if the crime is committed with the use of, inter alia, force, duress, or fear of "immediate and unlawful bodily injury on the victim." Petitioner asserts that the evidence adduced at trial was insufficient to support a finding of duress under § 288(b) because the "conduct by [petitioner] [ ] was entirely unrelated to his sexual activity with the victim." [Doc. No. 1, at p. 10].

         Petitioner takes issue, in particular, with the perceived reliance by the jury on Doe's testimony that she was afraid of petitioner due to his "tumultuous relationship with Doe's mother." [Id.]. Pointing to People v. Soto, he argues the jury finding of duress and subsequent upholding by the California Court of Appeal is inconsistent with the holding that "the language of section 288 and the clear intent of the Legislature [dictate] the focus must be on the defendant's wrongful act, not the victim's response to it." 51 Cal.4th 229, 246 (2011). Petitioner argues that because Doe did not testify any of his "behavior or words" were "by design, intended to scare Doe and impel her cooperation in the sexual misconduct[, ]" the jury finding should be overturned. [Doc. No. 1, at p. 11] (emphasis added).

         On direct appeal, the California Court of Appeal noted the element of duress allowed for a totality of circumstances analysis. [Doc. No. 10-8, at 11-12]; See People v. Veale, 160 Cal.App.4th 40, 46 (2008). Specific factors may be considered in sexual misconduct cases when evaluating duress under California law, including: the age of victim, the relationship between the victim and the defendant, the relative size difference, and the age disparity. Id. Doe testified on more than one occasion she felt "grossed out" and uncomfortable during each act of misconduct. [Doc. No. 10-45, at pp. 6055, 6059-60, 6062]. Doe repeatedly testified she felt incapable of telling her father, "No." [Id. at 6059, 6074, 6096-97, 6104]. Of note, Doe stated:

I was afraid that maybe word would get back to my dad, maybe he would get me in trouble or something, hurt me, or do something to hurt me. On top of that, I don't think I trusted people enough to share that kind of thing with. It was also information that made me very different about myself. I was always afraid of people knowing about it or maybe thinking something different about me.

[Id. at pp. 6096-97] (emphasis added). Moreover, Doe "described [petitioner's] volatile and at times violent behavior, including tying [both she and her] mother to the bed, throwing a chair, holding her mother in a headlock[, ] and pulling the phone out of the wall." [Doc. No. 10-8, at p. 12].

         Given the totality of evidence in the record from Doe's testimony, the Court of Appeal found sufficient evidence to support the jury's finding of duress, noting in support of its conclusion:

The sexual abuse started when Doe was a small child and continued until she was finally able to assert herself enough to confront defendant at age 14. Doe testified she found the activity "gross, " "disgust[ing], " and "upset[ting], " but she was too afraid of defendant to protest the molestation, and she worried if she told someone he might hurt her. She explained she did not know what he was capable of doing, and she described his volatile and at times violent behavior, including tying her mother and her to the bed, throwing a chair, holding her mother in a headlock and pulling the phone out of the wall.

[Id. Sit p. 12].

         Thus the jury was well within its rights to "deduce that although [petitioner] may not have overtly forced Doe to engage in sexual activity, he psychologically coerced her by creating an atmosphere of fear within the family so that she would be intimidated, compliant, and secretive about the sexual activity." [Id. at 12-13]. This Court agrees with the Court of Appeal.

         Petitioner's argument that Soto dictates this Court should find there was insufficient evidence is inaccurate. The Soto court writes, "[b]ecause duress is measured by a purely objective standard, a jury could find that the defendant used threats or intimidation to commit a lewd act without resolving how the victim subjectively perceived or responded to this behavior." Soto, 51 Cal.4th at 245-46. Doe testified to witnessing violent acts throughout her childhood committed by petitioner and how those acts, in turn, instilled fear in her. The jury was entitled to conclude from Doe's testimony that petitioner created an environment in which Doe would remain quiet about any molestations for fear of violence consistent with what she had previously experienced and witnessed. To the extent competing inferences could be drawn from Doe's testimony, this Court presumes the jury resolved any conflict in favor of the prosecution. Jackson, 443 U.S. at 326.

         Petitioner further relies on People v. Espinoza, 95 Cal.App.4th 1287 (2002) and People v. Hecker, 219 Cal.App.3d 1238 (1990). The Espinoza Court held that there was insufficient evidence to support a finding of duress because "no evidence was introduced to show that [the 12 year-old victim's fear of the defendant] was based on anything defendant had done other than to continue to molest her." Espinoza, 95 Cal.App.4th at 1321. The evidence adduced in Espinoza was that the defendant was victim's father, the defendant was physically larger than her, and the victim was "limited intellectual[ly]." Id. Without more, the Espinoza court found the evidence insufficient to support a § 288(b) finding. Id. at 1321-1322. Similarly, in Hecker, there was no evidence the victim was threatened by the defendant, nor did the victim testify she was afraid of the defendant. Hecker, 219 Cal.App.3d at 1250. Instead, the victim merely testified she "felt 'psychologically pressured' and 'subconsciously afraid'" of the defendant. Id. The evidence in the record did not allow a fact finder to conclude even the bare minimum of an "implied threat of force, violence, danger, hardship or retribution." Id. (internal citations omitted).

         Here, as noted above, Doe not only testified she was afraid of petitioner, but she also testified to witnessing multiple instances when petitioner was physically violent in the home. It was not unreasonable for a jury to conclude petitioner's actions furthered an environment that would actively discourage Doe from speaking out about the molestations, and fear the ramifications were she to do so. Again, while competing inferences might be drawn from the evidence adduced, this Court "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." Jackson, 443 U.S. at 326.

         Viewing the evidence in the light most favorable to the prosecution, and resolving all competing inferences in favor of the existing resolution, it was not objectively unreasonable for the California Court of Appeal to conclude that there was sufficient evidence from which a rational juror could infer duress and convict Petitioner. See 28 U.S.C. § 2254; Jackson v. Virginia, 443 U.S. 307, 319 (1979).

         Accordingly, the Court RECOMMENDS this claim be DENIED.

         3. Analysis of Petitioner's Contention of Insufficient Evidence Due To Limited Testimony Regarding an Incidence of Sexual Assault in Count One

         In claim two, Petitioner argues there was insufficient evidence to support his conviction for aggravated sexual assault in Count One because Jane Doe could not recall specific facts regarding the place and time of an incidence of oral copulation. [Doc. No. 1, at p. 11]. During the trial, Doe's recollection was refreshed using a transcript of the testimony she had given in petitioner's prior trial. [Doc. No. 10-44, at p. 6079].

         The California Supreme Court addressed, in People v. Jones, the issue of repeated acts of molestation of a minor that are "essentially indistinguishable, " and the inherent difficulty in parsing individual instances of abuse over an extended period of time. 51 Cal.3d 294, 299-300 (1990). Testimony from a victim in such cases is adequate to support conviction only when the victim is able to testify to (1) the kind of acts committed; (2) the number of acts committed with sufficient certainty to support each of the counts alleged in the information; and, (3) the general time period when the acts occurred. Id. at 316. In Jones, the victim recalled multiple instances of oral copulation only, which occurred once or twice a month at five locations. Id. at 322. The victim could not remember, nor did he testify to, the "exact time, place, or circumstance of [the] assaults." Id. Rather, the charging document provided start and end dates for the periods during which the alleged acts occurred. The California Supreme Court held the jury findings of guilt were supported by the victim's testimony that the molestations "occurred during the periods specified in [the] four counts of the information." Id.

         Upon review of an insufficiency of evidence claim regarding repeated sexual misconduct against a minor, courts look to the entire record to determine if a "rational trier of fact could find the defendant guilty beyond a reasonable doubt." Id. at 314. All evidence is viewed in the light most favorable to the prosecution. Id.

         Petitioner raises a number of arguments related to Doe's testimony, most of which turn on her inability to independently recall an act of oral molestation, and her inability to state with specificity the exact location and time of the molestation. [Doc. No. 1, at pp. 11-12]. Petitioner contends the Court of Appeal misapplied Jones and the jury needed to find the alleged act of oral copulation occurred (1) in the bedroom; (2) at the Cedar Street house; and, (3) between July 1, 2002, and November 19, 2003. [Doc. No. 12, at p. 7].

         That Doe recalled the instance of oral copulation only after having her recollection refreshed with her prior testimony does not indicate there was insufficient evidence to support the jury finding. Petitioner cites no authority for the proposition that a witness whose recollection is refreshed from their prior testimony supports a finding of insufficient evidence. What petitioner, in effect, asks is for this Court to reevaluate the credibility of Doe's testimony. This is something that federal courts in habeas review have been explicitly prohibited from considering. See Marshall v. Longberger, 459 U.S. 422 (1983). Thus petitioner's argument regarding Doe's refreshed recollection is unavailing.

         Petitioner's additional arguments are that Doe's testimony, and the evidence in the record regarding the incidence of oral copulation failed to meet the burden identified by the California Supreme Court in Jones. Petitioner both overstates and misstates the specificity of evidence required for the prosecution to meet its burden. As noted, Jones requires a victim testify to (1) the kinds of acts committed; (2) the number of acts committed with sufficient certainty to support each of the counts alleged in the information; and, (3) the general time period when the acts occurred. Jones, 51 Cal.3d at 316. Doe clearly testified to the kind of act committed and the number of times the molestation occurred with respect to Count 1. [Doc. No. 10-45, at p. 6082]. The prosecution need not have produced evidence of the location of the charged molestation. That the prosecution decided to include the location of the molestation, the Cedar Avenue address, in Count 1 was not a required element under Jones:

The fact that she could not recall in which room it occurred does not defeat the support for a finding that defendant engaged in oral copulation with Doe at the Cedar residence. Even though the information alleged the incident occurred in the bedroom, no such finding was needed to support the jury's verdict.

[Doc. No. 10-75, at p. 14]. Thus, the Court of Appeal's determination was correct.

         Finally, Doe testified to the general time period when she lived at the Cedar Avenue residence. She recalled being nine to ten years old during that time. [Doc. No. 10-45, at p. 6055, 6084]. She also testified to living at the Cedar Avenue address for one year and that, upon moving to the Walnut Avenue address, she recalled being eleven years old and in the sixth grade. [Id. at 6053]. The prosecution decided to use the location of the molestation -the Cedar Avenue home - and the time frame during which the family lived there as the chronological reference point for Count 1. Jones is clear that the time frame need only be general. Moreover, the risk of the jury having convicted petitioner by relying on events charged in a different count are minimal because "the other allegations involved different locations, time periods, and/or sexual acts." [Doc. No. 10-75, at p. 15]. Doe recalled her age when the charged molestation occurred, and could not remember any other instance of oral copulation around that time. The Court of Appeal did not err when it determined a rational juror could do the simple math to determine how old Doe was when the family lived at different locations.

         This Court defers to the factual determinations by the jury and can find no basis upon which to conclude the jury's conclusions were objectively unreasonable. See Jackson, 443 U.S. at 326. The Court of Appeal's rejection of petitioner's claim was neither contrary to, nor an unreasonable application of, clearly established law.

         Accordingly, the Court RECOMMENDS this claim be DENIED.

         B. Ground Three Alleging Improper Admission of Prior Conviction

         In claim three, Petitioner alleges violations of his Fifth and Fourteenth Amendment due process rights because the trial court judge admitted evidence of the facts underlying his prior conviction of a sex offense against Jane Doe. [Doc. No. 1, at pp. 13-14].

         1. Background re Admission of Propensity Evidence

         Before petitioner's trial, the prosecution stated its intention to introduce detailed testimony of petitioner's prior conviction in 1998 - which included a confession - for molesting the victim in the instant case. [Doc. No. 10-42, at pp. 5904-05]. Petitioner opposed the admission of the specifics of the prior conviction arguing it was highly prejudicial:

Again, your Honor, I would object. It is extremely prejudicial to my client, especially given the fact that we are going to stipulate that he has been previously convicted [of] a sex offense as to this particular victim. That admission of the prior, coupled with the detective's testimony, which is [ ] extremely prejudicial would not allow my client to have a fair trial. [California Evidence Code Section] 352 would urge that [the People's request be denied].

[Id. at p. 5905]. After considering the arguments from the prosecution and petitioner's counsel, the trial court ruled that the evidence would be admitted under California Code of Evidence § 1108[5]:

And I think the way I look at it, the conviction is an admission that he did a touching. It could mean a lot of different things. That doesn't put ...

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