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Zelaya v. Clark

United States District Court, N.D. California

September 19, 2019

DANNY ZELAYA, Petitioner,
v.
KEN CLARK, Warden, [1]Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND DENYING CERTIFICATE OF APPEALABILITY

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE

         Petitioner 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, [2] 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The 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, subdivision (a)(8).
[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 her panties.
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 [he] did.”
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.
Jury Verdict
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).
Sentencing
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 treatment.”
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).

         II. STATE AND FEDERAL COURT PROCEEDINGS

         On 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 *1.

         On February 8, 2016, the California Court of Appeal rejected the aforementioned claims and affirmed the conviction. Id.

         On 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).

         On 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[3] because it constituted a custodial interrogation, in violation of Miranda.[4] See In re Zelaya (Danny) on H.C., Case No. S237535 (Nov. 30, 2016); Resp’t Ex. 16 (Dkt. 15-7 at 151).

         On April 13, 2016, the California Supreme Court denied the petition for review. See People v. Danny Zelaya, Case No. S232957 (Apr. 13, 2016).

         On 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.

         On June 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.[5]

         On 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.

         III. LEGAL STANDARD

         A 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).

         A state 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.

         Under 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).

         In 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).

         Even if 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)).

         On 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).

         When 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.

         Where 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.

         IV. DISCUSSION

         A. Sufficiency of the Evidence

         1. Background

         Petitioner 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.

         In rejecting this claim, the state appellate court stated as follows:

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 (Ochoa).)
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, 1265-1266.)
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 years old.
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 began puberty.
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 [β€œβ€˜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 ...

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