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Vasquez v. Muniz

United States District Court, E.D. California

July 9, 2019

ENRIQUE VASQUEZ, Petitioner,
v.
WILLIAM MUNIZ, Respondent.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         BACKGROUND

         Trial and Jury Deliberations

         The following statement of the case is taken from the unpublished opinion of the California Court of Appeal on direct review:[1]

Defendant was charged with lewd conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a) __ counts 1, 3, & 15), [2], [3]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 these questions.
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 verdict.
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 verdict.
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.

         With 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.[4] 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 (2002):[5]

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 follows:
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 fellow jurors.
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 ...

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