United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND
DENYING CERTIFICATE OF APPEALABILITY
GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE
Danny Zelaya, a state prisoner currently incarcerated at
California State Prison -Corcoran, brings the instant pro
se habeas action under 28 U.S.C. § 2254 to
challenge his 2014 conviction and sentence rendered in the
Contra Costa County Superior Court involving sexual offenses
against his former girlfriend E.’s niece, Jane Doe,
over a period of three years from 2010 to 2013. Having read
and considered the papers filed in connection with this
matter and being fully informed, the Court hereby DENIES all
claims in the petition for the reasons set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
California Court of Appeal summarized the facts of
Petitioner’s offense as follows. This summary is
presumed correct. See Hernandez v. Small, 282 F.3d
1132, 1135 n.1 (9th Cir. 2002); 28 U.S.C. § 2254(e)(1).
The Contra Costa County District Attorney filed an
information charging [Petitioner] in counts one and three
with sexual acts with a child 10 years old or younger (§
288.7, subd. (b)), and in counts two, four, five, and six
with lewd acts upon a child under age 14 (§ 288, subd.
(a)).[FN2] At trial, the information was amended to allege
for counts two, four, five, and six, [Petitioner] engaged in
substantial sexual conduct pursuant to section 1203.066,
[FN 2:] [Petitioner] was also charged with two counts of
forcible lewd acts upon a child under age 14 (§ 288,
subd. (b)(1)) for conduct related to Jane Doe 2 (Jane
Doe’s sister), but he was not convicted of these counts
at trial. [Petitioner] was also acquitted of one count (count
three, § 288, subd. (b)) related to Jane Doe.
Evidence at Trial
[Petitioner] was the boyfriend of Jane Doe’s aunt, E.
[Petitioner] and E. lived in three locations: the first was
an apartment on North Broadway Avenue in Bay Point, then a
house on Vista Way in Antioch, followed by another house on
Texas Street in Antioch. E. testified that they lived in the
Bay Point apartment from approximately March 2010 until
August 2010. She and [Petitioner] moved to the Texas Street
house in approximately May 2013. E. would regularly babysit
Jane Doe and her sister.
Jane Doe’s mother (mother) noticed a change in Jane
Doe’s behavior in 2013. Jane Doe had become angry, she
wanted to spend time alone, and her grades dropped at school.
In fall 2013, mother found Jane Doe crying in her room and
Jane Doe told her [Petitioner] had been touching her. Jane
Doe said it started in Bay Point (in 2010). Mother reported
the abuse to the police.
Antioch Police Department Sergeant Santiago Castillo
conducted a recorded interview of Jane Doe. In the interview,
which was played for the jury, she described the abuse. She
said the first touching occurred when she was eight years
old. She said [Petitioner] pulled her into the bedroom and
said “Let me touch you.” He touched her breasts
under her shirt and touched her on “top and
bottom” on her bare skin. He told her “[t]his is
our secret” and she should not tell anyone or he would
go to jail. She said it happened at the Bay Point apartment
more than 20 times when she was eight and nine years old. She
said it stopped between ages nine and ten when E. and
[Petitioner] moved to a different house, and then started
again in their current house. In his current house, he
touched her under her clothing on her vagina. [Petitioner]
encouraged her to touch his penis but she refused. Jane Doe
stated that it happened “pretty much every time”
she saw [Petitioner].
Jane Doe was also interviewed at the Children’s
Interview Center (CIC) and the recording was played for the
jury. Jane Doe stated that [Petitioner] began touching her
when she was eight years old. She described the first
incident when she was eight years old in the bedroom as
[Petitioner] unzipping her shorts. She said the shorts were
“really tight” so he had to unzip the zipper.
Then he was “squishing” her under her clothes and
touching her “deep hole pocket” or her
“heiny.” She said the first time he
“squished” her breasts touching her skin and
“squish[ed]” her vaginal area over her panties.
She said when she was 10 years old, [Petitioner] sucked her
breasts. When she was 10 and 11, he began rubbing her under
When the interviewer asked Jane Doe if [Petitioner] ever put
his hands inside her body when he was rubbing her underneath
her panties, she said that on one occasion, he put his finger
in her “guts.” She said it happened when her aunt
asked [Petitioner] to go to the Mi Pueblo grocery store and
he took her with him. She said that [Petitioner] told her
that if she let him touch her, he would buy her chips. She
said: “He would go in the guts and get the juicy thing
and squishy and slimy thing and eat it.” She then said
that “sometimes when I pee I forget to wipe” and
it leaves something “slimy.” The interviewer said
that it was okay to forget to wipe and Jane Doe responded,
“Well, I’m eleven years old, I’m not
supposed to forget.” The interviewer asked her what she
was wearing, and she responded “the same shorts, the
tight shorts.” She said [Petitioner] undid the zipper.
At the time of trial Jane Doe was 11 years old (she was born
in 2002). Jane Doe testified that [Petitioner] and E. had
lived in three places: an apartment and two houses. She
testified [Petitioner] touched her at the apartment and the
last house. During trial, Jane Doe was emotional so she was
unable to explain the details of the touching. She testified
that [Petitioner] touched her in a car when they went to a
“Mexican store.” She did not remember how old she
was when it happened, but it was when [Petitioner] lived at
the Bay Point apartment. Her Aunt E., however, testified that
she never sent [Petitioner] to the store with Jane Doe. E.
explained that the children never rode in the car with her or
[Petitioner] because they did not have car seats.
The jury heard two recorded interviews between [Petitioner]
and Sergeant Castillo. When [Petitioner] was initially
interviewed at his home, he immediately admitted his conduct.
He admitted the abuse began at the Bay Point apartment and
continued for three years. He initially agreed that he had
touched Jane Doe more than 50 times, but later in the
interview, he said it only happened a few times. He admitted
to touching her under her shirt and on the outside of her
panties, but claimed he never touched her vagina. He later
said that he may have touched inside her panties one time. He
explained that he touched her because he would “start
feeling something weird in my body.” He said there
something bad inside of him and he cannot control it. He
repeatedly said that Jane Doe was not lying. [Petitioner]
stated that he would “have to pay with jail for what
Dr. Jim Carpenter, a pediatrician specializing in child abuse
pediatrics, testified about the structure of female genitalia
and the sexual maturation of girls. During his testimony, he
explained some girls enter puberty as early as eight or nine
years old and some as late as 17 or 18 years old. He said the
average age is between 9 and 12 years old. He said that
prepubertal girls may have vaginal discharge; it is often the
first sign of puberty. He testified 11 years old is a
“common age” for discharge to be present.
[Petitioner] ’s Section 1118.1 Motion
During trial, [Petitioner] made a motion for judgment of
acquittal pursuant to section 1118.1 for counts one and three
because there was no evidence that Jane Doe was 10 years old
or younger when the sexual penetration occurred. The
prosecutor argued that Jane Doe testified that the touching
in the car occurred when [Petitioner] lived at the Bay Point
apartment in 2010 when Jane Doe was under the age of 10. The
court denied the motion, stating there was sufficient
evidence for the counts to go to the jury.
The jury found [Petitioner] guilty of count one: sexual acts
with a child 10 years or [sic] old or younger (§ 288.7,
subd. (b)), and counts two, four, five and six: lewd acts
upon a child under age 14 (§ 288, subd. (a)). The jury
acquitted [Petitioner] of count three (§ 288.7, subd.
(b)) and counts seven and eight (§ 288, subd. (b)(1))
related to Jane Doe 2. The jury found not true that in counts
two, four, five, and six, [Petitioner] engaged in substantial
sexual conduct pursuant to section 1203.066, subdivision
(a)(7) against more than one victim. The jury further found
not true that [Petitioner] was guilty of two or more sex
offenses against more than one victim pursuant to section
667.61, subdivision (e)(4).
At the sentencing hearing, the prosecutor read a letter from
Jane Doe’s mother addressing the impact the abuse had
on her daughters and her family. She described Jane Doe as
having great difficulty overcoming the incident. Jane Doe
“loses all interest in her normal routine and lives in
an imaginary world.” Mother stated she felt guilty for
what happened to her daughters and felt as though she cannot
move forward with her life.
The prosecutor argued that although [Petitioner] has no
criminal history and acknowledged the crimes, his conduct in
victimizing Jane Doe occurred over a period of three years.
The prosecutor requested a sentence of 29 years to life.
[Petitioner]’s counsel argued for sentence of 15 years
to life. He contended that although all crimes involving
abuse of a child are egregious, this case did not involve
sexual intercourse, threats, or use of force.
The court found: “[I]t is hard to argue about the
severity of the conduct by the defendant when one sees the
[e]ffect of the conduct on Jane Doe. It is such a
tragedy.” The court found that [Petitioner] took
advantage of a position of trust as a family member and the
crimes were committed at different times in different places
over a period of years. The court noted, in mitigation,
[Petitioner] had no criminal record and there was an early
acknowledgment of wrongdoing. The court stated “while
it was a little chilling [to hear] Mr. [Petitioner]’s
description of how he feels when he saw a woman-young, young,
woman, a girl of Jane [Doe’s] age, how that made him
feel physically, it also was a certain frankness and
directness that we don’t hear from sex offenders either
until they’ve undergone quite a bit of
The court then imposed a total sentence of 21 years to life.
The sentence consisted of an indeterminate term of 15 years
to life on count one and determinate terms of six years for
counts two, four, five, and six. For counts two, four, five,
and six, the court selected the mid-term of six years for
each count, but ordered the six-year terms to be served
concurrently. The court further ordered the determinate
six-year term as to count two to run consecutively to the
indeterminate term of 15 years to life on count one.
People v. Zelaya, No. A143200, 2016 WL 491659, *1-3
(Cal.Ct.App. Feb. 8, 2016) (brackets added).
STATE AND FEDERAL COURT PROCEEDINGS
August 1, 2014, Petitioner appealed the judgment to the
California Court of Appeal. 1 CT 249. On appeal, Petitioner
raised two claims: (1) insufficiency of the evidence as it
pertained to one count of sexual acts with a child 10 years
old or younger (count one); and (2) his sentence constitutes
cruel and unusual punishment under both the United States and
California Constitutions. Zelaya, 2016 WL 491659, at
February 8, 2016, the California Court of Appeal rejected the
aforementioned claims and affirmed the conviction.
March 11, 2016, Petitioner filed a petition for review in the
California Supreme Court. See People v. Danny
Zelaya, Case No. S232957 (Mar. 11, 2016).
September 30, 2016, Petitioner filed a state habeas petition
in the California Supreme Court, in which, in addition to the
above two claims, he alleged that the trial court erred in
admitting into evidence the audiotape-recording of the
initial police interview which occurred at Petitioner’s
home on October 1, 2013 because it constituted a custodial
interrogation, in violation of
Miranda. See In re Zelaya (Danny) on H.C.,
Case No. S237535 (Nov. 30, 2016); Resp’t Ex. 16 (Dkt.
15-7 at 151).
April 13, 2016, the California Supreme Court denied the
petition for review. See People v. Danny Zelaya,
Case No. S232957 (Apr. 13, 2016).
November 30, 2016, the state supreme court summarily denied
Petitioner’s state habeas petition. See In re
Zelaya (Danny) on Habeas Corpus, Case No. S237535 (Nov.
30, 2016); Resp’t Ex. 16.
16, 2017, Petitioner filed the instant federal habeas action
in this Court. See Dkt. 1. Petitioner raises the
same two claims from his direct appeal, as well as the
Miranda claim from his state habeas petition.
See Id . at 15-30.
August 3, 2017, this Court issued an Order to Show Cause.
Dkt. 3. Respondent filed an Answer and Memorandum of Points
and Authority in Support of Answer. Dkts. 15, 15-1. On August
13, 2018, Petitioner filed a Traverse. Dkt. 22. The matter is
fully briefed and ripe for adjudication.
federal court may entertain a habeas petition from a state
prisoner “only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). Under the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, a district court may not grant
a petition challenging a state conviction or sentence on the
basis of a claim that was reviewed on the merits in state
court unless the state court’s 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). The first prong
applies both to questions of law and to mixed questions of
law and fact, see Williams (Terry) v. Taylor, 529
U.S. 362, 407-09 (2000), while the second prong applies to
decisions based on factual determinations, see Miller-El
v. Cockrell, 537 U.S. 322, 340 (2003).
court decision is “contrary to” Supreme Court
authority, that is, falls under the first clause of section
2254(d)(1), only if “the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on
a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Williams
(Terry), 529 U.S. at 412-13. A state court decision is
an “unreasonable application of Supreme Court
authority, falling under the second clause of section
2254(d)(1), if it correctly identifies the governing legal
principle from the Supreme Court’s decisions but
“unreasonably applies that principle to the facts of
the prisoner’s case.” Id. at 413. The
federal court on habeas review may not issue the writ
“simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or
incorrectly.” Id. at 411. Rather, the
application must be “objectively unreasonable” to
support granting the writ. Id. at 409.
28 U.S.C. § 2254(d)(2), a state court decision
“based on a factual determination will not be
overturned on factual grounds unless objectively unreasonable
in light of the evidence presented in the state-court
proceeding.” See Miller-El 537 U.S. at 340;
see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th
Cir. 2000). Moreover, “a determination of a factual
issue made by a State court shall be presumed to be correct,
” and the petitioner “shall have the burden of
rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
determining whether a state court’s decision is
contrary to, or involves an unreasonable application of,
clearly established federal law, courts in this Circuit look
to the decision of the highest state court to address the
merits of the petitioner’s claim in a reasoned
decision. See Wilson v. Sellers, ___U.S.
__, 138 S.Ct. 1188, 1192 (2018); LaJoie v. Thompson,
217 F.3d 663, 669 n.7 (9th Cir. 2000). Moreover, “a
determination of a factual issue made by a State court shall
be presumed to be correct, ” and the petitioner
“shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).
constitutional error is established, habeas relief is
warranted only if the error had a “substantial and
injurious effect or influence in determining the jury’s
verdict.” Penry v. Johnson, 532 U.S. 782,
795-96 (2001) (quoting Brecht v. Abrahamson, 507
U.S. 619, 638 (1993)).
federal habeas review, AEDPA “imposes a highly
deferential standard for evaluating state-court
rulings” and “demands that state-court decisions
be given the benefit of the doubt.” Renico v.
Lett, 559 U.S. 766, 773 (2010) (internal quotation marks
omitted). In applying the above standards on habeas review,
the Court reviews the “last reasoned decision” by
the state court. See Robinson v. Ignacio, 360 F.3d
1044, 1055 (9th Cir. 2004).
there is no reasoned opinion from the highest state court to
consider the petitioner’s claims, the court looks to
the last reasoned opinion. Ylst v. Nunnemaker, 501
U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234
F.3d 1072, 1079 n.2 (9th Cir. 2000). Thus, a federal court
will “look through” the unexplained orders of the
state courts rejecting a petitioner’s claims and
analyze whether the last reasoned opinion of the state court
unreasonably applied Supreme Court precedent. See
Ylst, 501 U.S. at 804-06; LaJoie, 217 F.3d at
669 n.7. The last reasoned decision in this case is the state
appellate court’s unpublished disposition issued on
February 8, 2016, which relates to Petitioner’s first
two federal claims in the petition. Zelaya, 2016 WL
491659, at *1-7.
the state court gives no reasoned explanation of its decision
on a petitioner’s federal claim, a federal court should
conduct “an independent review of the record” to
determine whether the state court’s decision was an
objectively unreasonable application of clearly established
federal law. Plascencia v. Alameida, 467 F.3d 1190,
1197-98 (9th Cir. 2006); Himes v. Thompson, 336 F.3d
848, 853 (9th Cir. 2003). Here, Petitioner presented the
remaining federal claim-his Miranda claim-in his
state habeas petition, which the state supreme court
summarily denied. See In re Zelaya (Danny) on Habeas
Corpus, Case No. S237535 (Nov. 30, 2016). As such, this
Miranda claim may be reviewed independently by the
Court to determine whether that decision was an objectively
unreasonable application of clearly established federal law.
See Plascencia, 467 F.3d at 1197-98; Himes,
336 F.3d at 853.
Sufficiency of the Evidence
argues that the evidence was insufficient to support the
jury’s verdict of guilty on one count of sexual acts
with a child 10 years old or younger under California Penal
Code section 288.7(b) (count one). Dkt. 1 at 15.
Specifically, he argues that insufficient evidence existed to
show that Jane Doe was 10 years old or younger when he
sexually penetrated her. Id. at 18. Petitioner
points out that count one was “based on an incident
wherein [he] was alleged to have driven to a Mi Pueblo
grocery store with [Jane Doe] in tow, during which he
inserted his finger into her vagina, then put his finger in
his mouth.” Id. Petitioner contends there was
conflicting testimony as to when this incident
occurred, and it may have been when Jane Doe was 11 years
old. Id. at 18-20.
rejecting this claim, the state appellate court stated as
In reviewing [Petitioner]’s claim of insufficiency of
the evidence, “we review the entire record in the light
most favorable to the judgment to determine whether it
contains substantial evidence-that is, evidence that is
reasonable, credible, and of solid value-from which a
reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.]” (People v.
Lindberg (2008) 45 Cal.4th 1, 27.) “We view the
evidence in the light most favorable to the prosecution, and
presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence
(People v. Griffin (2004) 33 Cal.4th 1015, 1028,
citing People v. Ochoa (1993) 6 Cal.4th 1199, 1206
Section 288.7 subdivision (b) provides: “Any person 18
years of age or older who engages in oral copulation or
sexual penetration, as defined in Section 289, with a child
who is 10 years of age or younger is guilty of a felony and
shall be punished by imprisonment in the state prison for a
term of 15 years to life.” (§ 288.7, subd. (b).)
The statute defines sexual penetration as “the act of
causing the penetration, however slight, of the genital or
anal opening of any person” for the purpose of sexual
arousal or gratification. (§ 289, subd. (k)(1).) Thus,
“sexual penetration” does not have to be vaginal
penetration but only penetration of the labia, not the
vagina. (See People v. Quintana (2001) 89
Cal.App.4th 1362, 1371.)
For purposes of section 288.7, a child is “10 years of
age or younger” if the minor has not yet reached his or
her 11th birthday as of the time of the sexual assault.
(People v. Cornett (2012) 53 Cal.4th 1261,
The prosecution presented substantial evidence that the
sexual penetration occurred when Jane Doe was younger than 11
years old. Jane Doe testified at trial [Petitioner] touched
her in a car when they went to a “Mexican store.”
She did not remember how old she was when it happened, but
she said it was when [Petitioner] lived at the Bay Point
apartment. The testimony at trial established [Petitioner]
lived at the Bay Point apartment when Jane Doe was eight
During the CIC interview, Jane Doe described the incident
when [Petitioner] touched her under her panties and put his
finger in her “guts.” She again said it happened
in the car when they went to the Mexican grocery store. She
said: “He would go in the guts and get the juicy thing
and squishy and slimy thing and eat it.” The CIC
interviewer did not ask her how old she was when this
occurred, but Jane Doe described that she was wearing
“the same shorts, the tight shorts.” She had
earlier described the “tight shorts” when
discussing the very first time [Petitioner] touched her at
the Bay Point apartment. She said when she was eight years
old, she had on tight shorts and he had to unzip the zipper
to be able to touch her panties.
From Jane Doe’s testimony, viewing the evidence in the
light most favorable to the prosecution, the jury could
reasonably conclude that the sexual penetration occurred when
Jane Doe was eight years old. At trial, she testified the
incident occurred when [Petitioner] lived at the Bay Point
apartment in 2010 when Jane Doe was eight years old. Also,
both at the CIC interview and at trial, Jane Doe described
the penetration as happening on the car ride to the Mexican
grocery store. In the CIC interview, she described wearing
the same tight shorts as when [Petitioner] first touched her
at age eight.
[Petitioner]’s argument to the contrary is that Jane
Doe’s description of vaginal discharge was consistent
with a girl at the onset of puberty, not an eight year old.
[Petitioner] relies on the testimony of Dr. Carpenter that
girls begin to have a white discharge when they enter
puberty. However, Dr. Carpenter explained that girls may
enter puberty as early as eight years old, or as late as 17
or 18 years old. He said the average age is between 9 and 12
years old. He also testified that “prepubertal”
girls may have vaginal discharge. While he stated that 11
years old is a “common age” for discharge to be
present, it could be present earlier. As respondent makes
clear, Dr. Carpenter did not testify about when Jane Doe
There was also evidence that the substance Jane Doe referred
to during the incident was urine and not vaginal discharge.
Jane Doe stated “sometimes when I pee I forget to
wipe” and it leaves something “slimy.” The
interviewer said that it was okay to forget to wipe and Jane
Doe responded “Well, I’m eleven years old,
I’m not supposed to forget.” [Petitioner]
interprets this to mean that the incident must have happened
when she was 11 years old. However, it could also be
reasonably interpreted that she has sometimes forgotten to
wipe for months or years and she should no longer forget
because she was now 11 years old at the time she testified.
The jury heard all the evidence and as a rational trier of
fact could find [Petitioner] guilty of sexual penetration of
a child under 10 years old. (See Ochoa, supra, 6
Cal.4th at p. 1206 [“‘The proper test for
determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational
trier of fact could find the defendant guilty beyond a
reasonable doubt.’”].) Resolving all conflicts in
favor of ...