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Turner v. Duffy

United States District Court, E.D. California

February 26, 2018

ROBERT C. TURNER, Petitioner,
BRIAN DUFFY, Respondent.



         Petitioner is a California prisoner proceeding with counsel with a petition for writ of habeas corpus under 28 U.S.C. § 2254. He is serving three concurrent sentences of 25 years-to-life in the California Department of Corrections and Rehabilitation imposed in Solano County on September 27, 2012. The sentences were entered after petitioner was found guilty of committing three separate lewd and lascivious acts prohibited by California Penal Code § 288. On May 10, 2017, claim one in petitioner's habeas petition was dismissed; three claims remain. For the reasons set forth below, the court recommends that all three claims be rejected.

         I. Background

         On direct appeal, the California Court of Appeal, First Appellate District, summarized the facts presented at petitioner's trial and the proceedings relevant to petitioner's claims as follows:

The victim, D.A., was born in 1999.[1] Until she was 11 years old, she would visit her grandmother's house in Vallejo. Turner was her grandmother's boyfriend, and D.A. called him Papa.
When D.A. was nine years old, Turner touched her inappropriately while she was at her grandmother's house. She did not remember the first or last time it happened, but it happened more than once. At one point, Turner took her to the basement and rubbed her body, including her buttocks, with his hands. She ran upstairs, and although she thought what had happened was wrong, she did not tell her mother.
Turner touched D.A. between her legs, and while she did not remember how many times he touched her in that area, she testified it happened more than once and perhaps more than four times. When she was about 10 years old, Turner was alone with her in the kitchen of her grandmother's house, and he touched her waist and buttocks, squeezed her “boobs, ” and touched her between her legs. There were also times when appellant took her clothes off and touched her “with no clothing in between.” On at least two occasions, Turner put his finger inside what she called her “private.”[2] He may have done this more than 10 times.
D.A. knew the touching was wrong but did not call out and did not tell anyone because she was scared of Turner. In the sixth grade, she had a sex education class at school, and after that she told the teacher and her school principal about the touching because she was tired of hiding it. D.A. then told her mother, but was afraid of what her grandmother would say. She talked to a police officer about the touching and told him the truth. She was also taken to the Multi- Disciplinary Interview Center, where she spoke to forensics interviewer Nancy DiGiovanni. At trial, a DVD of that interview was played for the jury. D.A. was 11 years old at the time of the interview.
D.A. testified that she tried to forget the incidents. At trial she was nervous, upset, and scared. When testifying, she found the incidents hard to remember and discuss, but she said she was being as honest as she could.
D.A.'s mother, R.L., testified that she used to take her kids to her mother's house in Vallejo. Her mother was living with Turner, who was R.L.'s stepfather. D.A. was eleven years old when her mother learned about the incidents from an assistant principal at D.A.'s school. R.L. had never before seen D.A. crying like she was when R.L. went to the school to bring her home on May 13, 2011. D.A. never told her mother what happened before the assistant principal phoned her. R.L. knew Turner had issues with the law, but she was unaware of his prior conviction for touching children until after D.A. went to the police department.
On May 17, 2011, R.L. brought D.A. to the police station in Vallejo, where they spoke to Officer Robert Herndon. D.A. told Herndon that about one and a half years ago her grandfather, Papa, had called her into the bedroom where she sat on the bed and he touched her breasts and her crotch area over her clothing. It happened about 10 more times and progressed to skin-to-skin contact and digital penetration of the girl's vagina after Turner pulled down her panties. D.A. was crying, and it was hard for her to tell what happened. She told the officer it had taken her a long time to report the incidents because she was scared. D.A. said she had recently taken a class in sex education and learned the importance of reporting sexual assaults. Officer Herndon forwarded the initial report to the Investigations Unit, to a team that deals with sexual assaults against children.
Officer John Garcia was assigned to the case after Officer Herndon took the initial report. On cross-examination at trial, Officer Garcia testified he had made the decision not to have a Sexual Assault Response Team (SART) nurse perform an examination of D.A. The prosecution objected when defense counsel began asking about the breaking of the hymen, because Officer Garcia was not a qualified expert on the subject. The trial court sustained the objection, and defense counsel continued questioning Officer Garcia on his decision not to request a SART examination. Garcia explained that he did not request a SART examination because such examinations are worthwhile only if performed 48 to 72 hours after the occurrence. He was asked whether a female's hymen could be broken in sexual assaults and whether the pain D.A. had reported could be due to obliteration of her hymen. Garcia testified that he believed the hymen could be damaged not just by digital penetration but also by diving or swimming, although he admitted he was not an expert on the hymen.
The following morning, outside the presence of the jury, the prosecution indicated its intention to call a SART expert in rebuttal to respond to defense counsel's questions regarding the effect of digital penetration on the hymen and Officer Garcia's decision not to request a SART examination. After defense counsel said he would object to the proposed expert testimony, the trial court decided the rebuttal witness would not be allowed to testify. The prosecutor then asked to recall Officer Garcia so he could correct his earlier testimony concerning how the hymen could be obliterated based upon research the officer had performed the night before. Defense counsel objected that the research was hearsay, but the trial court allowed the testimony subject to a hearsay and [Confrontation Clause] objection.
Officer Garcia was recalled to testify in the prosecution's rebuttal case. He stated that after his testimony the previous day, he had consulted a very well-known SART nurse about whether the hymen could be obliterated by diving. She explained to him that the hymen is a membrane that partially covers the opening of the vagina and it cannot be obliterated. The nurse told Garcia that if an 11-year-old girl's vagina were digitally penetrated, there was a very slim likelihood of injury to her hymen unless there was bleeding; without bleeding, the injury would probably be minimal. Garcia testified he had told the nurse that at least a month had elapsed between the last alleged act of digital penetration and D.A.'s report, and the nurse responded that in such a case there would be only about a 10 percent chance of finding an injury to the hymen because it would repair itself very quickly. Even in the 10 percent of examinations where there was evidence of injury, it would not prove that a sexual assault occurred. The nurse indicated, however, that despite this she would recommend a SART examination in every single case.
The parties stipulated that on August 26, 1993, Turner was convicted of a violation of Penal Code section 288, subdivision (b), for lewd acts with a minor by force or fear.
On June 20, 2012, the jury found Turner guilty of three counts of lewd acts upon a child in violation of Penal Code section 288, subdivision (a). . .

ECF No. 18-4 at 162-65.

         The Court of Appeal affirmed judgment, id. at 172, and the California Supreme Court denied petitioner's request for review of that decision. ECF No. 18-4 at 175.

         II. Standards of Review Applicable to ...

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