United States District Court, E.D. California
ROBERT C. TURNER, Petitioner,
BRIAN DUFFY, Respondent.
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
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
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. 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
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.” 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.
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.
Standards of Review Applicable to ...