United States District Court, S.D. California
REPORT AND RECOMMENDATION RE PETITIONERS WRIT OF
Karen S. Crawford United Stales Magistrate Judge
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 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.
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
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].
appealed the judgment of conviction in the California Court
of Appeal on November 1, 2013. 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. On August 26, 2015, the petition was
denied. [Doc. No. 10-77].
October 26, 2016, petitioner filed a petition for a writ of
habeas corpus in the Southern District of California. [Doc.
California Court of Appeals' unpublished opinion sets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
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
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
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
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."
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.
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).
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).
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.
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."
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].
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].
Grounds One and Two Alleging Insufficiency of
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).
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].
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).
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
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).
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).
Analysis of Petitioner's Contention of Insufficient
Evidence to Support A Jury Finding of Duress
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.
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].
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).
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].
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].
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.
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.
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).
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.
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).
the Court RECOMMENDS this claim be
Analysis of Petitioner's Contention of Insufficient
Evidence Due To Limited Testimony Regarding an Incidence of
Sexual Assault in Count One
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].
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
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.
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].
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
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.
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.
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.
the Court RECOMMENDS this claim be
Ground Three Alleging Improper Admission of Prior
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].
Background re Admission of Propensity Evidence
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
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
[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:
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 ...