United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a California state prisoner proceeding pro se with an
application for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. This action proceeds on the petition filed on
December 5, 2016, ECF No. 1, which presents one claim
challenging petitioner's 2013 conviction and sentence for
eighteen separate counts of lewd conduct, oral copulation or
sexual penetration, and sexual intercourse with
petitioner's step-daughter when she was between the ages
of 6 and 12 years. Respondent filed an answer, ECF No. 10,
and petitioner filed a traverse, ECF No. 14.
and Jury Deliberations
following statement of the case is taken from the unpublished
opinion of the California Court of Appeal on direct
Defendant was charged with lewd conduct with a child under
the age of 14 (Pen. Code, § 288, subd. (a) __ counts 1,
3, & 15), , forcible lewd conduct with a child under
the age of 14 (§ 288, subd. (b)(1) __ counts 2, 4-5,
7-9, 12, & 17-20), oral copulation or sexual penetration
with a child age 10 or younger (§ 288.7, subd. (b)
__counts 6, 10-11, & 13-14), and sexual intercourse with
a child age 10 or younger (§ 288.7, subd. (a) __ count
16). Each count charged in the information was specifically
alleged to have taken place at an enumerated location
(defendant's car and different residences in the Rosemont
neighborhood of Sacramento) and during an enumerated
timeframe (spans of a year or years depending on the
victim's age at the time of the alleged act). We discuss
the underlying facts substantiating the charges only as
necessary to address the issues raised in this appeal.
A jury was sworn in on April 4, 2013, and the trial was held
on seven court days, including multiple days of testimony by
the victim, her eyewitness younger sister, dueling expert
witnesses, and several character witnesses. The testimony of
the victim and her younger sister described the multiple
alleged acts of molestation, with sometimes unclear
references to the victim's age at the time of the act or
where the act was committed. The victim's stepmother and
forensic investigators also recounted the information they
had obtained from the two minors in various conversations and
interviews. Character witnesses called by the defendant
(mostly defendant's adult children) provided confusing
testimony regarding when defendant and the victim lived in
the various enumerated residences. Thus, the jury was
presented with a hodgepodge of evidence about where events
occurred __ necessary factual findings based on the
allegations of the information.
Prior to deliberations, the jury was instructed, in
conformity with CALCRIM No. 3550: “it is your duty to
talk with one another and to deliberate in the jury room. You
should try to agree on a verdict, if you can. [¶] Each
of you must decide the case for yourself but only after you
have discussed the evidence with the other jurors. Do not
hesitate to change your mind if you become convinced that you
are wrong. Do not change your mind just because other jurors
disagree with you.” .
Deliberations began on April 16, 2013. On the first day, the
jury asked for clarification whether the victim testified or
reported her eyewitness younger sister knocked on the door
during one of the charged acts of child molestation. On the
second morning of deliberations [April 17, 2013], the jury
requested a readback of a forensic investigator's
testimony regarding the sister's interruption of the act
and about the use of a vibrator defendant provided to the
victim. They also asked about the presence of the
victim's other sister during the interrupted act. That
day, the court reporter read back the testimony regarding all
The following afternoon [April 18, 2013], the third day of
deliberations, the jury informed the court it was deadlocked
as to all counts. The court released the jury for the day and
ordered them to return the following day to continue
deliberations, saying: “It was a long trial. There are
a lot of counts. I'm not going to release you from this.
You're going to continue deliberating. So nine
o'clock tomorrow morning, and we'll see you
tomorrow.” After the jury left the courtroom, defense
counsel expressed a concern that since the court did not
specify the jury was not going to be released “at that
time, ” the jurors would be left with the impression
they must reach a verdict. The court dismissed counsel's
concern as unfounded because it had previously explicitly
instructed the jurors they have an option of not reaching a
The jury continued deliberations the following day (the
fourth day) [April 19, 2013] and asked for readback of
testimony relating to the victim seeing defendant naked, the
victim's head hitting the steering wheel while she orally
copulated defendant in the car, the longest period of time
she was touched inappropriately, the victim's recounting
of two separate incidents, and her testimony about her
mother's witnessing two separate molestation events.
After the readback of this testimony the following day (the
fifth day of deliberations) [April 22, 2013], the jury
informed the court it was still unable to render a unanimous
After conferring with counsel in chambers, the court noted
(outside the presence of the jury) the jury had “been
working hard on this and [had] deliberated pretty close to
five days.” The jury's questions did not indicate
any legal issues but seemed to indicate questions of
credibility of the victim and her sister. Upon questioning,
the foreperson informed the court he believed the jury was
hopelessly deadlocked and further deliberations would not
help, nor would different or additional instruction,
readback, or deliberation tactics. The jury had voted as to
all counts and as to each individual count three times.
Lodged Doc. 4 at 2-4.
regard to the number of votes, the court asked the jury
foreperson how many ballots had been taken, specifically
directing the jury foreperson: “Don't tell me at
all how anybody voted or what the votes were, what the splits
were.” RT 879. The court then polled the jury on the
possibility of reaching a verdict and whether further
deliberations would be useful. Eleven of the jurors believed
further deliberations would not be helpful. One juror
responded that he thought it was “possible that some __
with enough deliberation and maybe a different approach,
there might be some changes. It's possible.” RT
881. Based on this juror's response, the court gave the
jury the following “firecracker” instruction in
accordance with People v. Moore, 96 Cal.App.4th 1105
All right. I'm going to __ I appreciate, first of all,
your respective views on this. And then I trust that
you're __ it does sound like you're having collegial
and respectful negotiations, discussions, I mean
deliberations, and I appreciate that.
I am going to give you one additional instruction right now.
What I'm going to do right now, ladies and gentlemen, is
have further instructions and directions to give you as to
your deliberations in this case.
It has been my experience on more than one occasion that a
jury which initially reported it was unable to reach a
verdict was ultimately able to arrive at verdicts on one or
more of the counts before it. To assist you in your further
deliberations, I'm going to further instruct you, as
Your goal as jurors should be to reach a fair and impartial
verdict if you are able to do so based solely on the evidence
presented and without regard for the consequences of your
verdict, regardless of how long it takes to do so.
It is your duty as jurors to carefully consider, weigh and
evaluate all of the evidence presented at the trial, to
discuss your views regarding the evidence and to listen to
and consider the views of your fellow jurors.
In the course of your further deliberations, you should not
hesitate to reexamine your own views or to request your
fellow jurors to reexamine theirs.
You should not hesitate to change a view you once held if you
are convinced it is wrong or to suggest other jurors change
their views if you are convinced they are wrong.
Fair and effective jury deliberations require a frank and
forthright exchange of views.
As I previously instructed you, each of you must decide the
case for yourself, and you should do so only after a full and
complete consideration of all of the evidence with your
It is your duty to __ your duty as jurors to deliberate with
the goal of arriving at a verdict on the charge if you can do
so without ...